ASN 1 Appeal-768.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.768 OF 2011 IN CHAMBER SUMMONS NO.469 of 2009 IN SUIT NO.1158 of 1994 M/s. Tikamdas and Bros. ...Appellants. Vs. M/s. Manta Exports and ors. ...Respondents. Mr. Y.V.Punjwani i/by Virendra Panjwani for the Appellants. Mr. S.D.Kadam for the Respondents. CORAM : MOHIT S. SHAH, C. J. AND SMT. ROSHAN DALVI, J. DATE : 14 DECEMBER 2011 PC: This appeal is directed against the order dated 3 October 2011 of the learned Single Judge allowing the chamber summons for condonation of delay in setting aside the abatement and permitting the respondents to be brought on record as legal representatives of the original plaintiff. 2 The original plaintiff proprietor of M/s. Manta Exports died on 29 September 2007. The respondents herein filed the chamber summons on 23 January, 2009 for bringing them on record as legal ASN 2 Appeal-768.sxw representatives of the original plaintiff. Respondent No.1 i. e. Applicant No.1 in the chamber summons is the husband of the original plaintiff and applicant Nos. 2 and 3 are the married daughters of the original plaintiff. The learned Single Judge relied on the principles laid down by the Apex Court in Perunon Bhagvathy Devaswom Vs. Bhargavi Amma (2008) 8 SCC 321 and thereafter held that the explanation offered by the applicants constituted sufficient cause within the meaning of Section 5 of the Limitation Act. The learned Single Judge gave the following reasons for giving this finding. “Applying this principle, I would now consider whether the applicants have shown that there was a sufficient cause for not making the application in time. The applicant No.1 has filed affidavit in support of the chamber summons in which he has stated that his wife (the original plaintiff) died in a road accident and because of her tragic death, he was greatly disturbed and upset for a long time. He has further stated that applicant Nos. 2 and 3 are his married daughters and they are settled with their in-laws and there was no other family member living with him thereafter. Because of the disturbed state of mind, he did not go to the advocate which has resulted in delay in filing of the application. The explanation offered cannot be termed as an irrational or inadequate and, in my view, constitutes sufficient cause within the meaning of Section-5 of the Limitation Act. Hence, the chamber summons is allowed in terms of prayer clauses (a), (b), (c) and (d)”. 3 The learned counsel for the appellant submits that the grounds given by the applicants would not constitute sufficient cause for ASN 3 Appeal-768.sxw condonation of delay of 500 days. The learned Counsel has placed reliance on the decision of the Apex Court in Balwant Singh (Dead) Vs. Jagdish Singh and others (2010) 8 SCC 685 and particularly, observations in Paragraphs 25 to 27 of the said decision. The learned counsel for the respondents-applicants in the chamber summons has supported the order of the learned Single Judge. 4 Having heard the learned counsel for the parties, we do not find any merit in this appeal because in Perunon Bhagvathy Devaswom (cited supra), the Apex Court has held that 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, Court 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. The reliance placed by the appellant on the decision in Balwant Singh (Dead) (cited supra) is misconceived in the facts of that case which are required to be noted. 5 The Supreme Court dismissed the application for setting aside the abatement in an appeal which was pending before the Supreme Court. In the facts of that case noted by the Supreme Court in Paragraph 2 of the Judgment are as under. ASN 4 Appeal-768.sxw 6 The appellant-landlord had filed a suit against the tenant on the ground of non payment of rent which was only Rs.200/- per month. The tenant had denied the relationship of landlord and tenant and even claimed title to the said property on the basis of an agreement dated 21 November 1953 entered into by the predecessor-in-interest of the appellant. The Rent Controller passed the decree of eviction and the Appellate Authority confirmed it but the High Court set aside the decree of eviction and that judgment of the High Court was assailed by way of special leave petition before the Supreme Court. That leave was granted in February 2006. The sole appellant before the Supreme Court died on 28 November 2007 and thereafter, on 15 April 2010 interlocutory application came to be filed for condonation of delay in filing the application for bringing the legal heirs on record. Thus, there was delay of 778 days in filing the application for condonation of delay .The said application for condonation of delay was seriously contested on behalf of the non applicants. On the aforesaid facts, the Supreme Court held that the application filed by the applicant lacks in details. Even the averments made are not correct and ex facie lack bonafides. The explanation has to be reasonable or plausible, so as to persuade the Court to believe that the explanation rendered is not only true, but is worthy of exercising judicial discretion in favour of the applicant. The Supreme Court further held that if the application is bonafide and based upon true and plausible explanations, as well as reflects normal behaviour of a common prudent person on the part of the applicant, the Court would normally tilt the judicial discretion in favour of such an applicant. ASN 5 Appeal-768.sxw 7 The facts of the present are quite different. The wife of applicant No.1 died in a motor vehicle accident and therefore, applicant No.1 was not in proper state of mind to make the application in pending litigation. Applicant Nos. 2 and 3 are married daughters of the deceased who are staying with their in laws . In the facts and circumstances of the case, we are of the view that the learned Single Judge was right in exercising judicial discretion in favour of the appellant. 8 The appeal is accordingly, dismissed. CHIEF JUSTICE ( SMT. ROSHAN DALVI, J. )