IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CMP(M) No.: 11729 of 2013 in RSA No.: 134 of 2001-A. Reserved on: 29.11.2013. Decided on: 24.12.2013. _________________________________________________________ Khub Ram and others. … Plaintiffs/Appellant/Applicants. Versus Bhag Chand and others. … Respondents/defendants/non-applicants. Coram The Hon’ble Mr. Justice Dharam Chand Chaudhary, Judge. Whether approved for reporting?1 Yes. For the Plaintiffs/ : Mr. K.D. Sood, Senior Advocate with appellants/applicants Mr. Rajnish K. Lall, Advocate. For the Respondents/ : Mr. G.D. Verma, Senior Advocate with Mr. non-applicants. B.C. Verma, Advocate. Dharam Chand Chaudhary, J.: CMP(M) No.11729 of 2013 & CMP No.12166 of 2013. A small, but very interesting question of law has been brought to this Court for adjudication in these applications. 2. The main lis, which was brought to this Court in regular second appeal, stands terminated on the decision of 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - appeal vide judgment and decree passed by a Co-ordinate Bench of this Court on September 16, 2011. The petition for Special Leave to Appeal (Civil) No.946 of 2012 against the judgment and decree passed by learned Single Judge of this Court is pending disposal before the Apex Court. As a matter of fact, it is pursuant to the report on the notice issued by the Apex Court in petition for Special Leave to Appeal the respondents/defendants (petitioners in the SLP) came to know about the death of one of the appellants, namely, Jitu. It is on an application filed by the respondents/defendants with the prayer to allow them to move an application before this Court to bring on record the legal representatives of deceased appellant, Jitu, the Apex Court has passed the following order in the petition for Special Leave to Appeal on 15.4.2013:- “It appears that one of the Appellants before the High Court, who is third respondent herein, died during the pendency of the appeal and the petitioners propose to bring the LRs of the deceased respondent on record, hence the instant applications. When the matter is taken up, learned counsel for the petitioners, Ms. Kiran Suri, Advocate submits that petitioners will move an appropriate application before the High Court to bring the LRs of the deceased third respondent, who was the Appellant before the High Court and prays that the matter be adjourned to enable the petitioners to pursue the above-mentioned course of action. - 3 - In view of the above, list the matter after ten weeks to enable the petitioners to take appropriate steps in this regard.” 3. Consequently, the respondents-defendants have filed one of these applications under Order 22 read with Section 151 of the Code of Civil Procedure registered as CMP No.12166 of 2013 for seeking dismissal of the appeal having been abated on account of death of said Shri Jitu, whereas the surviving appellants/plaintiffs, namely, Khub Ram and Goverdhan Lal another application under Order 22 Rules 3, 9 and 11 read with Section 151 of the Code and Section 5 of the Limitation Act, registered as CMP(M) No.11729 of 2013 on 3rd October, 2013 for substitution of his legal representatives on condonation of delay and setting aside the abatement of appeal, if any. 4. The dismissal of the appeal having been abated, has been sought on the grounds, inter alia, that since deceased Jitu has died long back on 20.9.2001 and as the appellants-plaintiffs have failed to take steps for substitution of his legal representatives well within the period of limitation, the appeal stands abated as a whole. The death certificate in respect of the death of appellant, Jitu has also been annexed to the application as Annexure R-1. - 4 - 5. On the other hand, the stand of the surviving appellants-plaintiffs as highlighted in para 3 of the application registered as CMP(M) No.11729 of 2013 reads as follows:- “However, the heirs and legal representatives of Jitu, appellant No.3 were not aware of the pendency of the appeal. Likewise, appellants 1 and 2 were also not aware of the fact that on the death of Jitu, appellant No.3 his heirs and legal representatives had to be brought on record. The appellants 1 and 2 and the heirs and legal representatives of Jitu, appellant No.3 are illiterate and rustic villagers and were not aware of the formalities which were required to be done on the death of any of the appellants and as such could not inform the counsel for taking steps for bringing on record the heirs and legal representatives of Jitu, appellant No.3. The applicants are illiterate and rustic agricultural labourers and also earn their livelihood as labourers with shepherds for grazing the cattle in the interiors of Kullu and Lahaul & Spiti districts. It was only when the defendants moved CMP No.11923 of 2013 in RSA No.135 of 2001 and CMP No.12166 of 2013 in RSA No.134 of 2001 in pursuance to the observations of the Hon’ble Supreme Court dated 15.04.2013 in the appeals which have been filed by the respondents and were served with the notices therein they came to know that heirs and legal representatives of Jitu, appellant No.3 had to be brought on record. The applicants contacted their advocate and collected the material information and are filing - 5 - the present application for bringing on record the heirs and legal representatives of Jitu, appellant No.3, after collecting the necessary papers and files from the counsel in the Supreme Court. Had the heirs and legal representatives of Jitu, appellant No.3 known about the pendency of the appeal and the factum that on the death of Jitu, appellant No.3 they had to be substituted and brought on record and appellants 1 and 2 also known the similar fact that on the death of Jitu, defendant No.3 they had to bring on record the heirs and legal representatives of Jitu, appellant No.3, they would have immediately taken steps in this behalf. The appellants have a very good case prima facie and have succeeded in the appeals before the Hon’ble Single Judge and in case the heirs and legal representatives of Jitu, appellant No.3 are not brought on record they will suffer irreparable loss and injury which cannot be compensated. It is submitted that there is no negligence, inaction or want of bonafides on the part of the applicants in moving the application for bringing on record the heirs and legal representatives of Jitu, appellant No.3 after setting aside the abatement and condoning the delay in moving the application for the said purpose from 20.12.2001 onwards, i.e. 11 years. There is sufficient cause for condonation of delay in moving the application for bringing on record the heirs and legal representatives of Jitu, appellant No.3. It may be submitted that the appeal had been pending for the last over 11 years. The appellants would not gain in any manner having not moved the application for bringing on record the heirs and legal - 6 - representatives of Jitu, appellant No.3 earlier. It is because of the illiteracy and ignorance and the fact that the appellants are rustic villagers and labourers moving with shepherds to earn their livelihood and therefore the application could not be moved earlier. Even the respondents had not informed about the factum of death of Jitu, appellant No.3 when the appeal was pending in this Hon’ble Court.” 6. It is worth mentioning that there is no quarrel qua the date of death of deceased appellant, Jitu or his legal representatives, who, in both the applications, are common. 7. Be it stated that the limitation prescribed for filing an application under Order 22 Rule 3 or for that matter under Rule 4 of the Code for substitution of the legal representatives of a deceased plaintiff or defendant under Article 120 of the Limitation Act, is 90 days. Similarly, in order to avoid the dismissal of the appeal having been abated, the limitation for filing an application for setting aside the abatement on the death of sole plaintiff or one of the plaintiffs and sole defendant or one of the defendants, is 60 days from the date of abatement. Sub-rules (1) and (2) of Order 22 of the Code make it crystal clear that where the right to sue survives, the death of a plaintiff or defendant shall not cause the suit to abate and the Court after passing an order that the right to sue survives in favour of the - 7 - surviving plaintiff or plaintiffs or against the surviving defendant or defendants, shall proceed further in the suit. 8. In the present case, it is one of the appellants/plaintiffs has died during the pendency of appeal, therefore, it is sub-rule (3) of Order 22 of the Code is attracted. Sub-rule (3) of Order 22 of the Code takes care of a situation where on the death of one of the plaintiffs right to sue survives to the surviving plaintiff or plaintiffs alone or a sole plaintiff alone or where a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the Court on an application made in that behalf shall pass an order qua substitution of legal representatives of the deceased plaintiff and thereafter proceed further with the suit in accordance with law. Sub-rule (2) of Rule 3, however, provides that where within the period of limitation no application is made under sub-rule (1) of Rule 3, the suit shall abate, so far as the deceased plaintiff is concerned. 9. Adverting to the record, against the judgment and decree passed by learned lower Appellant Court on 8.1.2001 in civil Appeal No.118 of 1999, the main appeal registered as RSA No.134 of 2001 was filed in this Court on 20.3.2001. The appeal was admitted for final hearing on 12.4.2001. It is after admission of the appeal, deceased appellant, Jitu has died on 20.9.2001. The appeal stands finally disposed of vide judgment and decree dated - 8 - 16.9.2011 and the factum of death of deceased appellant, Jitu went unnoticed being not brought to the notice of this Court by either party nor consequential steps taken. The application registered as CMP(M) No.11729 of 2013 under Order 22 Rules 3, 9 and 11 read with Section 151 of the Code and Section 5 of the Limitation Act has thereafter been filed in this Court on 3rd October, 2013, of course, after an inordinate delay of over 12 years. 10. It is well settled at this stage that howsoever is the delay, the same can be condoned if sufficient cause is found to have been shown from the perusal of records. The Apex Court in Perumon Bhagvathy Devaswom, Perinadu Village Versus Bhargavi Amma (dead) by LRs and others (2008) 8 SCC 321, a case of 394 days’ delay in filing an application for substitution of the legal representatives of one of the respondents and setting aside the abatement while condoning the same has laid down the following principles to be taken into consideration at the time of consideration of an application of this nature:- “13. The principles applicable in considering applications for setting aside abatement may thus be summarized as follows : (i) The words "sufficient cause for not making the application within the period of limitation" should be understood and applied in a reasonable, pragmatic, practical and liberal manner, depending upon the facts and circumstances of the case, and the type of - 9 - case. The words “sufficient cause” in section 5 of Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bona fides, deliberate inaction or negligence on the part of the appellant. (ii) In considering the reasons for condonation of delay, the courts are more liberal with reference to applications for setting aside abatement, than other cases. While the court will have to keep in view that a valuable right accrues to the legal representatives of the deceased respondent when the appeal abates, it will not punish an appellant with foreclosure of the appeal, for unintended lapses. The courts tend to set aside abatement and decide the matter on merits, rather than terminate the appeal on the ground of abatement. (iii) The decisive factor in condonation of delay, is not the length of delay, but sufficiency of a satisfactory explanation. (iv) The extent or degree of leniency to be shown by a court depends on the nature of application and facts and circumstances of the case. For example, courts view delays in making applications in a pending appeal more leniently than delays in the institution of an appeal. The courts view applications relating to lawyer's lapses more leniently than applications relating to litigant's lapses. The classic example is the difference in approach of courts to applications for condonation of delay in filing an appeal and applications for condonation of delay in refiling the appeal after rectification of defects. - 10 - (v) Want of “diligence" or “inaction” can be attributed to an appellant only when something required to be done by him, is not done. When nothing is required to be done, courts do not expect the appellant to be diligent. Where an appeal is admitted by the High Court and is not expected to be listed for final hearing for a few years, an appellant is not expected to visit the court or his lawyer every few weeks to ascertain the position nor keep checking whether the contesting respondent is alive. He merely awaits the call or information from his counsel about the listing of the appeal.” 11. Before proceeding further in these applications, this Court would like to examine that on the death of appellant-plaintiff, Jitu, the right to sue survives at the instance of legal representatives or the appeal stands abated qua them alone or as a whole. In the suit declaration to the effect that the appellants-plaintiffs including deceased Jitu had acquired the suit land by way of sale from its previous owner, Dolu, hence are owners thereof, has been sought. Therefore, it is seen that the surviving appellants-plaintiffs claimed themselves to be joint owners in possession of the suit land alongwith deceased appellant/plaintiff, Jitu. The suit land being joint, therefore, the suit cannot proceed at the instance of the surviving appellants/plaintiffs alone and the substitution of legal representatives of deceased appellant-plaintiff, Jitu is essentially required so that the suit can proceed further. - 11 - The present, therefore, is a case where the right to sue does not survive to the surviving appellants-plaintiffs alone, but also to the legal representatives of deceased appellant- plaintiff, Jitu and, as such, they are necessary parties so that the suit can proceed further. 12. However, when on the disposal of the main appeal vide judgment and decree dated 16.9.2011, the proceedings pending before this Court stand already terminated, an application under Order 22 Rules 3, 9, and 11 read with Section 151 of the Code and Section 5 of the Limitation Act for substitution of legal representatives of deceased appellant-plaintiff, Jitu and setting aside abatement of appeal on condonation of delay in a closed lis and for that matter the prayer made by the respondents- defendants qua dismissal of the main appeal, which stands already disposed of on merit vide judgment and decree dated 16.9.2011, is maintainable or not, is a million dollar question, which has engaged the attention of this Court. The answer thereto in all fairness and in the ends of justice would be in negative for the reason that the procedure contemplated under Order 22 of the Code is applicable in a pending lis and not in a lis which stands terminated on the decision of the main case. As a matter of fact, on decision of the main appeal vide judgment and decree dated 16.9.2011, this Court has become functus officio and, as - 12 - such, an application of this nature cannot be entertained independent to the main lis. This Court, however, is in agreement with the arguments addressed on behalf of the surviving appellants/plaintiffs that the delay howsoever long, if stands satisfactorily explained, should be condoned. In Perumon Bhagvathy Devaswom, Perinadu Village Versus Bhargavi Amma (dead) by LRs and others, supra, the delay of 394 days was condoned and the abatement of appeal set aside on the ground that the appeal after admission came to be listed for hearing after years together and the factum of death of the party respondent neither disclosed by learned counsel representing the deceased respondent as required under Order 22 Rule 10-A of the Code nor by the legal representatives of the said respondent and the appellant came to know about the death of the said respondent when the appeal came to be listed for final hearing. 13. The Apex Court in Swami Prasad and another Versus Lakhan Singh (dead) and others, (2010) 15 SCC 152 while placing reliance on its judgment in Perumon’s case, supra, has reiterated that the Court should take a lenient view while considering an application for condonation of delay and setting aside the abatement, particularly, when after admission of the appeal it was listed after years together and the factum of death of the deceased party not - 13 - disclosed by learned counsel or the legal representatives of the deceased respondent. 14. In the case in hand also, the appeal after its admission on 12.4.2001 was earlier listed on 1.3.2002 for consideration in an application and thereafter on 18.3.2011 for final hearing, i.e. after about 9 years. In the Interregnum, i.e. on 20.9.2001 appellant/plaintiff, Jitu has died. The appeal was heard partly on 31st May, 2011, however, released and thereafter heard again on 10.8.2011 and finally disposed of vide judgment and decree dated 16.9.2011, of course, without taking note of the factum of the death of deceased appellant/plaintiff, Jitu being not disclosed either by the surviving appellants-plaintiffs or the proposed legal representatives or by the respondents- defendants/their pleader. However, as already discussed, there being no lis pending, this Court refrains itself from making any other and further observation touching the merits of the case. 15. Consequent upon the time granted by the Apex Court to the respondents (petitioners in petition for Special Leave to Appeal) for filing an application to bring on record the legal representatives of deceased appellant-plaintiff, Jitu (respondent No.3 in the Petition for Special Leave to Appeal) and on the application filed by the surviving appellants- plaintiffs for substitution of legal representatives of said Shri - 14 - Jitu, both applications would have been considered on merits but for the reasons stated supra, such a course of action may not be warranted. 16. Therefore in view of what has been said hereinabove, both the applications are not maintainable and the same are accordingly disposed of. (Dharam Chand Chaudhary), Judge. December 24, 2013. (sck)