HON’BLE SRI JUSTICE G.V.SEETHAPATHY SAMP Nos.2312, 2313 and 2314 of 2007 in SA No.846 of 1998 COMMON ORDER: SA MP No.2312 of 2007 is filed under Section 5 of the Limitation Act seeking to condone the delay of 2416 days in filing the petition to bring the legal representatives of the deceased 2nd appellant on record as appellants 3 and 4; SA MP No.2313 of 2007 is filed under Order 22 Rule 9 CPC seeking to set aside the abatement caused due to the death of the deceased 2nd appellant; and SAMP No.2314 of 2007 is filed under Order 22 rule 3 CPC seeking to permit the petitioners 3 and 4 to come on record as legal representatives of the deceased 2nd appellant. 2. Heard both sides. Perused the record. 3. The appellants 1 and 2 filed suit OS No.53 of 1980 against the respondent for declaration that they are the owners of the plaint schedule property and for permanent injunction. The respondent filed written statement, contesting the suit. By judgment and decree dated 30.08.1989, the suit was decreed. Aggrieved by the same, the defendant preferred appeal in AS No.55 of 1990. The learned Senior Civil Judge, Bapatla, by impugned judgment dated 31.03.1998 allowed the appeal setting aside the judgment and decree of the trial court. Hence, the present second appeal by the plaintiffs. During the pendency of the second appeal, second appellant died on 24.08.2000. 4. The petitioners 3 and 4 filed SA MP No.2312 of 2007 on 05.09.2007 seeking to condone the delay of 2416 days in filing the application to get themselves impleaded as legal representatives. They also filed SA MP No.2313 of 2007 for setting aside the abatement on account of the death of the 2nd appellant and SA MP No.2314 of 2007 to get themselves impleaded as appellants 3 and 4, being the legal representatives of the deceased 2nd appellant. The respondent opposed the application and filed counter. According to the petitioners 3 and 4, during the life time, 2nd appellant gifted the subject matter of the suit in their favour and that they are the successors in interest and they came to know about the pendency of the appeal recently. The affidavit filed in support of the application initially did not contain any valid or justifiable reasons duly explaining the delay of 2416 days in filing the LR application except stating that the delay is neither willful nor wanton. Subsequently, the petitioners filed additional affidavit wherein they stated that the affidavit was drafted on 26.11.2000, but the application could not be filed before the court by one Mr. Prakash, clerk of the counsel and it is only when the matter was listed during 2007, the application came to be filed on 21.08.2007 by another clerk Mr. Srinivas. It is further alleged that CMP SR No.36061 of 2007 was returned by the office on 22.08.2007 raising certain objections and giving 10 days’ time for compliance, but the clerk instead of representing the application, filed fresh application and in the mean time there was delay. The petitioners therefore sought to explain away the delay by throwing the blame on the clerk of the counsel. 5. There is nothing on record to show that the affidavit was drafted on 26.11.2000 as stated in the additional affidavit. Even according to the petitioners, the application was filed into court for the first time only on 21.08.2007. The reasons for not filing the application into court for nearly 7 years is no where stated in the additional affidavit, except stating that it was not filed by the clerk Mr. Prakash. The affidavits of the previous clerk Mr. Prakash or subsequent clerk Mr. Srinivas are not filed explaining the reasons for the delay. CMP SR No.36061 of 2007 which is said to have been filed on 21.08.2007 which was returned by the office on 22.08.2007 for compliance with certain objections is not filed. The material on record shows that the present applications bearing SR Nos.38314, 38312 and 38213 are filed into court for the first time on 05.09.2007. The affidavit filed in support of the application shows that it was sworn on 22.08.2007. The earlier application in CMP SR No.36061 of 2007 is admittedly not represented. Even assuming that such an application in CMP SR No.36061 of 2007 was filed on 21.08.2007, which was just about 15 days prior to filing of the present applications, still there was a delay of seven years in filing the applications since the death of the 2nd appellant, which occurred on 24.08.2000. The plea of the petitioners that the petition and affidavit were prepared on 26.11.2000 itself but they were not filed into court immediately, remains unsubstantiated and the same cannot also be countenanced. 6. The delay of nearly seven years in filing applications is not only abnormal, but also remains unexplained and smacks of total negligence and in difference on the part of the petitioners. The additional affidavit filed by the petitioners instead of clarifying and explaining the delay contradicts the earlier affidavit filed along with the application. In the original affidavit, it is stated that recently when the appeal was listed for hearing, their counsel contacted them and at that time, the petitioners brought the fact of death of the 2nd appellant to their counsel notice, who in turn advised to file an appropriate application and hence, the said application was being filed. The said affidavit was sworn on 22.08.2007 and the application was filed on 02.09.2007. Thus as per the averments of the said affidavit, the petitioners came to know about the pendency of the appeal pertaining to the suit property only few days prior to filing of the said petition in the year 2007, but as per the contents of the additional affidavit sworn in by the same person-3rd petitioner B Krishna Murthy, the factum of death of the 2nd appellant on 24.08.2000 was brought to the notice of their counsel in November 2000 and accordingly, counsel prepared an affidavit on 26.11.2000, but because of latches on the part of the Advocate clerk, it was filed on 21.08.2007. If really, the factum of death of 2nd appellant was brought to the notice of the counsel in November 2000 itself and an application was also prepared on 26.11.2000 as stated in the additional affidavit, the plea raised in the original affidavit that they came to know about the pendency of the appeal only few days prior to August 2007 and they informed their counsel about the death of the 2nd appellant, who advised them to file appropriate application stands falsified. The pleas raised in the original affidavit and the additional affidavit seeking to explain away the abnormal delay of 2416 days in filing the applications are mutually inconsistent and contradictory, throwing any amount of suspicion over the genuineness of the said plea itself. Both the pleas do not simply go together. 7. In a decision in ‘Balwant Singh (dead) vs. Jagdish Singh[1]’ the apex Court while dealing with the application for condoning the delay of 778 days, which was sought to be explained by pleading ignorance of the pendency of the appeal, held as follows: “The cumulative effect of conduct of the legal representatives of the sole deceased, appellant, clearly shows that they have acted with callousness, irresponsibly and have not even stated true facts in the application for condonation of delay. The approach and conduct of the applicants certainly would invite criticism. Moreover, it will be difficult for the Court to exercise its discretionary power in favour of the applicants. There is not even a whisper in the entire application as to why, right from the death of the deceased in November, 2007, the appellant did not take any steps whatsoever till 15th April, 2010 to inform their counsel about the death of the deceased and to bring the legal representatives on record.’ It was further held as follows: “The applicant, who seeks aid of the Court for exercising its discretionary power for condoning the delay, is expected to state correct facts and not state lies before the Court. Approaching the Court with unclean hands itself, is a ground for rejection of such application.’ 8. In the above decision a reference was made to the decision in ‘Ramlal v. Rewa Coalfields Ltd., (AIR 1962 SC 361) wherein the apex Court held as follows: “….It is however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the court by Section 5. If sufficient cause is not proved nothing further has to be done; the application for condoning delay has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration;..." It was further held as follows: “…On an analysis of the above principles, we now revert to the merits of the application in hand. As already noticed, except for a vague averment that the legal representatives were not aware of the pendency of the appeal before this Court, there is no other justifiable reason stated in the one page application. We have already held that the application does not contain correct and true facts. Thus, want of bona fides is imputable to the applicant. There is no reason or sufficient cause shown as to what steps were taken during this period and why immediate steps were not taken by the applicant, even after they admittedly came to know of the pendency of the appeal before this Court.” 9. In the present case also, the material on record shows that the applicants have not approached the court with clean hands and in their vain bid to some how explain the abnormal delay, they even resorted to raise contradictory pleas and the conduct of the petitioners in not stating the correct and true facts disentitles them from seeking discretionary relief of condonation of delay. The petitioners have also failed to offer any satisfactory explanation for the delay and therefore, it must be held that there is no sufficient cause shown by the petitioners for condonation of the delay. Even the ground urged by the petitioner that they were not aware of the pendency of the appeal is rendered highly suspicious in view of the contradictory pleas raised in the two affidavits as to when the petitioners came to know about the pendency of the appeal. 10. Learned counsel for the petitioners would rely upon the above decision in ‘Ram Sumiran v. DDC[2]’ wherein the apex Court held that in the circumstances of the case, the delay of six years in filing application for bringing LRs of deceased-respondent on record and for setting aside abatement on the ground of illiteracy and ignorance of the appellants therein can be condoned. 11. The above decision cannot be made applicable to the facts of the present case, wherein the petitioners 3 and 4 have not come forward with true facts as to when they came to know about the pendency of the appeal. It is not the plea of the petitioners that due to illiteracy or ignorance, they could not take steps immediately or within the reasonable time after the death of the 2nd appellant. According to them, as averred in the additional affidavit, they brought to the notice of their counsel during the month of November 2000 itself about the death of the 2nd appellant in August 2000. The said plea is however contradictory to the averments in the original affidavit filed along with the petition, wherein, they stated that they came to know about the pendency of the appeal only in the year 2007. 12. Learned counsel for the petitioners relied on another decision in ‘N.Balakrishnan vs. M. Krishnamurthy[3]’ wherein the apex Court held that ‘while exercising the discretion in the matter of condonation of delay, the expression ‘sufficient cause’ should be construed liberally’. It was held that ‘length of delay is no matter, acceptability of the explanation is the only criterion.’ 13. In the present case, the explanation offered is itself found to be not acceptable owing to mutual contradictory and totally inconsistent pleas taken by the petitioners in the two affidavits i.e., the original one filed along with the petition and subsequent additional affidavit. When once the explanation is found to be totally unacceptable on account of its suspicious veracity, the question of adopting a liberal approach in the matter of condonation of delay does not arise. The decisions cited by the learned counsel for the petitioners, are therefore not applicable to the facts of the present case. 14. In the circumstances, it is held that the petitioners have miserably failed to satisfactorily explain the abnormal delay of 2416 days in filing the application and no sufficient cause is shown by them for the condonation of the said delay. 15. In the result, SA MP No.2312 of 2007 is dismissed. Consequently, SA MP Nos.2313 and 2314 of 2007 are also dismissed. No order as to costs. __________________ G.V.SEETHAPATHY, J Date: 23.08.2011 bss [1] (2010)8 SCC 685 [2] (1985) 1 SCC 431 [3] (1998)7 SCC 123