1 ca1281.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION NO.1281 OF 2010 IN/WITH CIVIL APPLICATION ST. NO. 23158 OF 2009 IN SECOND APPEAL NO.379 OF 1996 Shivaji s/o Raghunath Bhanji, Age: 51 years, Occ: Military Service, R/o. Tuljapur, Tq. Tuljapur, Dist. Osmanabad and another. ...APPLICANTS VERSUS Narayan s/o Apparao Bagade (Died his name is deleted) Bhausaheb s/o Apparao Bagade (Died). Balasaheb s/o Apparao Bagade (Died) Through his LRs.: Dwarkabai wd/o Balasaheb Bagade, Age: 70 years, Occ: Household, R/o. Tuljapur, Tq. Tuljapur Dist. Osmanabad and others. ...RESPONDENTS ... Mr. Vinesh C. Solashe, Advocate for applicants. ... CORAM: S.S. SHINDE, J. DATE : 28TH NOVEMBER, 2011 PER COURT : . Heard learned Counsel for the applicants. Though proposed legal heirs of deceased respondent 2 ca1281.10 No. 3 are served, none appears for them. There is delay of 2080 days in bringing legal heirs of deceased respondent No.3 on record. 2. On 26-11-2010 this Court issued notice to the proposed legal heirs of deceased respondent No.3. Service is complete. In spite of service, none appears of them. 3. The Counsel appearing for the applicants would submit that, as per provisions of Order 22 Rule 10A of the Code of Civil Procedure, Pleader appearing for respondent No.3 in the second appeal was under duty to inform the Court about the death of respondent No.3. However, such steps have not been taken by the Counsel for respondent No.3. . Learned Counsel appearing for the applicants invited my attention to the reported judgment in the case of Perumon Bhagvathy Devaswom, Perinadu Village vs. Bhagavati Amma (Dead) By LRs. and another reported in 2008 3 ca1281.10 DGLS(Soft) 895 and in particular para-8 of the said judgment and submitted that, case of the applicant is squarely covered by the principles applicable for setting aside the abatement. Therefore, according to the Counsel for the applicants, the application deserves to be allowed. 4. I have given due consideration to the submissions of the learned Counsel for the applicants. Though the legal heirs of deceased respondent No.3 are served, none appears for them. In para-3 of the application for condonation of delay, it is stated that the appeal is filed in the year 1996 and same came to be admitted in the year 1997. It is the case of the applicants that, Advocate for the applicants told them that the second appeal may not be taken up for final hearing for 12 to 13 years. It is further stated that, the applicants when contacted their Advocate on telephone in the second week of September 2009 and inquired about the status of the second 4 ca1281.10 appeal, Advocate informed them that the appeals from the year 1993-94 are listed on board and therefore, the second appeal will take some more time to list for final hearing. During the conversation with the Advocate, it transpires that respondent no.2 and 3 are died during the pendency of the second appeal. Thereupon, the applicants informed the Advocate. Accordingly, death certificate was handed over to the Advocate and thereafter, immediately steps are taken to bring legal heirs of deceased respondent No. 3 on record. 5. It is true that, there is considerable delay in filing the application for condonation of delay in bringing legal heirs of deceased respondent No. 3 on record. However, in the facts and circumstances of this case, in view of the explanation offered in para-3 of the application, in view of the principles applicable in considering the application for setting aside abatement and though the proposed legal heirs of 5 ca1281.10 deceased respondent No.3 are served, none appears for them, delay in filing the application for bringing legal heirs of deceased respondent No. 3 on record deserves favourable consideration and abatement also deserves to be set aside. 6. The Hon'ble Supreme Court in the case of Perumon Bhagvathy Devaswom, Perinadu Village (supra) in para-8 mentioned the principles applicable in considering the application for setting aside abatement which reads thus : "8. 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 case. The 6 ca1281.10 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 bonafides, 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 7 ca1281.10 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. (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 8 ca1281.10 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." 7. In the instant case, it is the case of the applicants that, as per provisions of Order-22 Rule-10A of the Code of Civil Procedure, Advocate appearing for deceased respondent No.3 has not informed the Court about the death of respondent No.3 or did not file anything on record about the death of respondent No. 3 during the pendency of the appeal. Order-22 Rule-10A of the Code of Civil Procedure reads thus : "10-A. Duty of pleader to communicate to Court death of a party.- Whenever a pleader appearing 9 ca1281.10 for a party to the suit comes to know of the death of that party, he shall inform the Court about it, and the Court shall thereupon give notice of such death to the other party, and, for this purpose, the contract between the pleader and the deceased party shall be deemed to subsist." . Therefore, for the reasons aforesaid, I am inclined to allow this application in terms of prayer clause (A) (B) (C) and (D). 8. Learned Counsel for the applicants to take necessary steps to amend the title clause etc., within three weeks from today. Learned Counsel further prays that deceased respondent No. 2 may be allowed to be deleted from the array of the respondents. Liberty granted as prayed on the risk of the applicants. . Amendment to be carried out forthwith. 9. Civil Application is allowed to the above 10 ca1281.10 extent and stands disposed of. 10. Civil Application Stamp No.23158 of 2009 is allowed for the aforesaid reasons in terms of prayer clause (B) and (C), same stands disposed of. . Necessary steps to be taken within three weeks from today. [S.S. SHINDE, J.] sut/NOV11