Case: Perumon Bhagvathy Devaswom Perinadu Vill Vs. Bhargavi Amma (D) Thr. Lrs

2. This appeal is by the appellant in Second Appeal No.147 of 1993 on the file of the High Court of Kerala. During the pendency of the said appeal, the second respondent before the High Court, died on 17.4.2002. In that behalf, the appellant filed the following three applications on 9.10.2003 : (i) an application to set aside the abatement of the appeal against second respondent in the second appeal; (ii) an application to condone the delay in filing the said application to set aside the abatement; and (iii) an application to bring on record, the LRs of the deceased second respondent in the second appeal. The High Court, being of the view that the delay of 394 days was not satisfactorily explained, dismissed the application for condonation of delay as also the application for setting aside the abatement and consequently, dismissed the application for bringing the LRs on record, by three separate orders dated 5.10.2005. As the deceased second respondent in the second appeal was the sole plaintiff in the original suit from which the second appeal arose, the second appeal was closed on 5.10.2005, as having abated. The said four orders are challenged in this appeal by special leave.  3. The appellant contends that there was no negligence or laches on its part and it had satisfactorily explained the reasons for the delay which were due to circumstances beyond its control. The appellant, a Devoswom managed by a Committee, gave the following explanation for the delay:  When the second appeal was filed in 1993, it was managed by an earlier Managing Committee. Later in a suit relating to the management of the Devoswom, the Sub-Court, Kollam appointed a Receiver to manage the Devoswom. Thereafter elections were held on 25.5.2003 and the newly elected Committee of Management assumed office on 8.6.2003. The new Committee of Management was unaware of the pendency of the second appeal and, therefore, not in a position to file necessary applications in time. The Committee came to know about the appeal only when it received a communication dated 7.9.2003 from the lawyer about the case. Thereafter it ascertained the particulars of the LRs. of the deceased and filed the applications on 9.10.2003.

Reasoning:
6. What should be the approach of courts while considering applications under section 5 of Limitation Act, 1963, has been indicated in several decisions. It may be sufficient to refer to two of them7. This Court has also considered the scope of Rules 4 and 9 of Order 22 in several decisions. We will refer to them. In Union of India vs. Ram Charan (Deceased) by LRs. [AIR 1964 SC 215 ],9. Let us next also refer to some of the special factors which have a bearing on what constitutes sufficient cause, with reference to delay in applications for setting aside the abatement and bringing the legal representatives on record10. The first is whether the appeal is pending in a court where regular and periodical dates of hearing are fixed. There is a significant difference between an appeal pending in a sub-ordinate court and an appeal pending in a High Court. In lower courts, dates of hearing are periodically fixed and a party or his counsel is expected to appear on those dates and keep track of the case. The process is known as `adjournment of hearing. In fact, this Court in Ram Charan (supra) inferred that the limitation period for bringing the legal representative might have been fixed as 90 days keeping in mind the adjournment procedure :"The legislature might have expected that ordinarily the interval between two successive hearings of a suit will be much within three months and the absence of any defendant within that period at a certain hearing may be accounted by his counsel or some relation to be due to his death or may make the plaintiff inquisitive about the reasons for the other partys absence."In contrast, when an appeal is pending in a High Court, dates of hearing are not fixed periodically. Once the appeal is admitted, it virtually goes into storage and is listed before the court only when it is ripe for hearing or when some application seeking an interim direction is filed. It is common for appeals pending in High Courts not to be listed at all for several years. (In some courts where there is a huge pendency, the non-hearing period may be as much as 10 years or even more). When the appeal is admitted by the High Court, the counsel inform the parties that they will get in touch as and when the case is listed for hearing. There is nothing the appellant is required to do during the period between admission of the appeal and listing of the appeal for arguments (except filing paper books or depositing the charges for preparation of paper books wherever necessary). The High Courts are overloaded with appeals and the litigant is in no way responsible for non-listing for several years. There is no need for the appellant to keep track whether the respondent is dead or alive by periodical enquiries during the long period between admission and listing for hearing. When an appeal is so kept pending in suspended animation for a large number of years in the High Court without any date being fixed for hearing, there is no likelihood of the appellant becoming aware of the death of the respondent, unless both lived in the immediate vicinity or were related or the court issues a notice to him informing the death of the respondent11. The second circumstance is whether the counsel for the deceased respondent or the legal representative of the deceased respondent notified the court about the death and whether the court gave notice of such death to the appellant. Rule 10A of Order 22 casts a duty on the counsel for the respondent to inform the court about the death of such respondent whenever he comes to know about it. When the death is reported and recorded in the ordersheet/proceedings and the appellant is notified, the appellant has knowledge of the death and there is a duty on the part of the appellant to take steps to bring the legal representative of the deceased on record, in place of the deceased. The need for diligence commences from the date of such knowledge. If the appellant pleads ignorance even after the court notifies him about the death of the respondent that may be indication of negligence or want of diligence12. The third circumstance is whether there is any material to contradict the claim of the appellant, if he categorically states that he was unaware of he death of the respondent. In the absence of any material, the court would accept his claim that he was not aware of the death13. Thus it can safely be concluded that if the following three conditions exist, the courts will usually condone the delay, and set aside the abatement (even though the period of delay is considerable and a valuable right might have accrued to the opposite party - LRs of the deceased - on account of the abatement) :(i) The respondent had died during the period when the appeal had been pending without any hearing dates being fixed;(ii) Neither the counsel for the deceased respondent nor the Legal Representatives of the deceased respondent had reported the death of the respondent to the court and the court has not given notice of such death to the appellant(iii) The appellant avers that he was unaware of the death of the respondent and there is no material to doubt or contradict his claim14. If, as in this case, the appeal was admitted in 1993 and did not come up for hearing till 2005, and the respondent died in-between, the court should not punish the appellant for his ignorance of the death of respondent, by refusing to set aside the abatement. Lack of diligence or negligence can be attributed to an appellant only when he is aware of the death and fails to take steps to bring the legal representatives on record. Where the appellant being unaware of the death of respondent, does not take steps to bring the legal representatives on record, there can be no question of any want of diligence or negligence15. In this case, the appeal was not being listed periodically by the High Court. Neither the counsel for the deceased second respondent in the High Court, nor the legal representatives of the deceased respondent reported her death to the High Court. There was no notice of death to the appellant. The appellant is an institution which acts through its Managing Committee. During the relevant period, there was transition of management from a Court Receiver to an elected managing committee. An affidavit was filed on behalf of the appellant that its new Committee was unaware of the pendency of the appeal. Being unaware of the pendency of appeal is equivalent to being unaware of the death of a respondent. This may happen in two circumstances. First is where the appellant himself is dead and his LRs have newly come on record. Second is where the appellant is an institution or company and a new Committee or Board of Management takes over its management. In such an event, even if they knew about the death of a person, they may not know the significance or relevance of death of such a person with reference to a pending appeal if they do not know about the appeal. As the appeal had already been admitted in 1993, and as hearing dates were not fixed periodically, the new Committee had no way of knowing that the appeal was pending, that Bhargavi Amma was a party to the appeal and that the Legal Representatives of the deceased Bhargavi Amma (second respondent before the High Court) had not been brought on record. In the circumstances, we are of the view that the delay was satisfactorily explained. The High Court ought to have condoned the delay, set aside the abatement and permitted the appellant to bring the legal representatives of the deceased respondent on record