SHANTI DEVI & OTHERS versus KAUSHALIYA DEVI
[2015] 9 S.C.R. 477, Supreme Court of India, 2015
Outcome: Disposed off
Segment: Ratio
(2015] 9 S.C.R. 477 
SHANTI DEVI & OTHERS 
v. 
KAUSHALIYA DEVI 
(Civil Appeal No. 7011 of 2015) 
SEPTEMBER 18, 2015 
[DIPAK l\iilSRAAND PRAFULLA C. PANT, JJ.) 
A 
8 
Code of Civil Procedure, 1908 - Or. XX/Ir 3 - Limitation 
Act, 1963 - Article 120 of Schedule - Application for 
substitution by respondent alongwit/1 application uls. 5 of the C 
1963 Act for condonation of delay - First appellate court 
condoned the delay of more than eleven years setting aside 
abatement and allowed the substitution in place of plaintiff/ 
appellant, in appeal pending before first appellate court -
D 
High Court upheld the same - Propriety of- Held: In view of 
the spirit of the provision contained in r 3 of Or XX/I read 
with Article 120 of Schedule, the first appellate court and the 
High Court erred in law in condoning the delay of more than 
eleven years in moving substitution application, and setting E 
aside the abatement - Respondent/daughter of the deceased 
had full knowledge of death of her father and also of the 
litigation pending before the first appellate court- Delay could 
not be condoned on insufficient grounds and by abusing the 
process of law -Thus, the order passed by the High Court F 
·" 
and by the first appellate court set aside .. 
I 
Karam Kaur v. Jalandhar Improvement Trust and thers 
(2014) 6 sec 40~ - referred to. 
I 
Case Law Reference 
G 
(2014) s sec 409 
referred to. 
.Para 5. 
' 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 
7011of2015. 
H 
477
478 
SUPREME COURT REPORTS 
[2015] 9 S.C.R. 
A 
From the Judgment and Order dated 02.01.2014 of the 
High Court of Judicature at Allahabad, Lucknow Bench at 
Lucknow in Writ Petition No. 58 of 2008. 
WITH 
B 
C.A. No. 7008 of 2015. 
Pradeep Kant, Divyanshu Sahay, Rakesh K. Sharma for 
the Appellants. 
c 
Sanjay Agarwal, Deepak Kumar Singh, Parmod Kumar, 
D 
Nitin Kumar Thakur for the Respondent. 
The Judgment of the Court was delivered by 
PRAFULLA C. PANT.J. 
Civil Appeal No. 7011 of 2015 
1. This appeal is directed against order dated 
02.01.2014, passed by High Court of Judicature atAllahabad, 
E Lucknow Bench, whereby said court has dismissed the Writ 
Petition No. 58 of 2008 (MIS), affirming the order dated 
10.10.2007, passed by the Additional District Judge/Special 
Judge (E.C.Act), Gonda, in Miscellaneous Case No. 08 of 
2006. By said order, the first appellate court condoned the · 
F delay of more than eleven years, and allowed the substitution 
application moved by the respondent, in Civil Appeal No. 124 
of 1987 which stood abated on 14.03.1995, and thereafter 
dismissed in default on 21.03.1997. 
G 
2. We have heard the learned counsel for the parties and 
perused the papers on record. 
3. This is the second round of litigation between the 
parties. In the first round, Ram Narayan, father of respondent 
H Kaushaliya Devi, instituted Originc:i! Suit No. 277/66 on
SHANTI DEVI & OTHERS v. KAUSHALIYA DEVI 
479 
[PRAFULLAC. PANT.J.] 
16.12.1966 before Munsif, Gonda. In said suit, Ram Narayan A 
pleaded that the defendant (predecessor in title of the present 
appellants) was his tenant, and the tenancy was terminated 
vide notice dated on 02 .11.1966. The defendant disputed title 
of the plaintiff. And after full trial, the suit was dismissed on 
which, Ram Narayan preferred Civil Appeal No. 107 of 1973. 
B 
The same was also dismissed on 20.04.1977 with the 
observation that since issue of ownership of the plaintiff is 
disputed, and relationship of landlord and tenant between 
parties not proved, as such, the_ plaintiff was at liberty to file 
fresh suit on the basis of ownership. Thereafter, unsuccessful C 
plaintiff (Ram Narayan) started fresh litigation by filing Original 
Suit No. 45 of 1980 against Ram kali (predecessor in title of 
appellants) and Gauri Shanker seeking declaration of title and 
damages. This suit was also contested, and after recording D 
the evidence and hearing the parties, the same was dismissed 
vide judgment and decree dated 21.07.1987 (Annexure P-1). 
On which the plaintiff filed Civil Appeal No. 124of1987. During 
the pendency of the appeal, defendant Ram Kali died, and 
her legal representatives were substituted. Thereafter appellant E 
Ram Narayan (original plaintiff) died on 14.12.1994. Since 
no substitution by his heirs was sought in the appeal filed before 
first appellate court, as such, the appeal
stood abated on expiry 
of ninety days of death of plaintiff-appellant, and ultimately the 
appeal was dismissed in default on 21.03.1997. 
F 
·-
4. After a period of eleven years, on 13.04.2006, 
substitution application (Annexure P-4) was moved by the 
present respondent Kaushaliya Devi along with application 
(Annexure P-3) under Section 5 of Limitation Act, 1963. The G 
defendants filed objections to said application. After hearing 
the parties, application for condonation of delay was allowed, 
vide order dated 10.10.2007 (Annexure P-7), passed by the 
first appellate court i.e., Additional District Judge/Special 
Judge (E.C. Act), Gonda. Aggrieved by said order, the present H
480 
SUPREME COURT REPORTS 
[2015] 9 S.C.R. 
A 
appellants filed Writ Petition No. 58 of 2008 (M/S) before the 
High Court. The writ petition was earlier allowed ex-parte on 
05.07.2013 (Annexure P-10). It appears that writ petition was 
got restored, and finally dismissed after hearing the parties, 
vide impugned order dated 02.01.2014, challenged in this 
B appeal. 
5. Shri Pradeep Kant, Senior Advocate, on behalf of the 
appellants (defendants) argued before us that seeking 
condonation of delay of more than 10 years is nothing but abuse 
C of process of law, and it defeats the very purpose of period of 
limitation of ninety days provided in Article 120 of Schedule of 
Limitation Act, 1963. Reliance is placed on behalf of the 
appellants in the case of Karam Kaur v. Jalandhar 
Improvement Trust and Others1, in support of the above 
D argument. 
6. On the other hand, learned counsel for the respondent 
submitted that the courts below have done the substantial 
justice as Kaushaliya Devi, daughter of plaintiff, who was a 
E married woman, was living away from his father, as such could 
not move the substitution application in time, and she remained 
under impression that her counsel before the first appellate 
court had taken the necessary steps. 
F 
7. Before further discussion, we think it just and proper to 
mention the relevant provisions applicable to the present case. 
Rule 3 of Order XXll of Code of Civil Procedure, 1908 (for 
short "CPC") provides that where the
plaintiff dies, and the 
right to sue survives, the Court, on an application made in that 
G behalf shall cause legal representative of the deceased plaintiff 
to be made-a party and shall proceed with the suit. Rule 11 of 
Order XXll provides that in the application of the Order to 
appeals word "plaintiff' shall be held to include "appellant". Sub-
H 
1 c2014) e sec 409
SHANTI DEVI & OTHERS v. KAUSHALIYA DEVI 
481 
[PRAFULLAC. PANT.J.] 
rule (2) of Rule 3 of the Order provides that where within the A 
time, limited by law, no application is made under sub-rule (1) 
the suit shall abate. So far as the limitation is concerned, Article 
120 of Schedule of Limitation Act, 1963 provides period of 
ninety days for moving substitution application. Sub-rule (3) 
of Rule 9 provides that, the provisions of Section 5 of Indian B · 
Limitation Act, shall apply to sub-rule (2), wherein a person 
claiming legal representative of deceased plaLlltiff has a right 
to apply for setting aside the abatement but was prevented by 
any sufficient cause from continuing the suit. 
c 
8. Now, we have to see whether in the present case 
sufficient reason was shown for condonation of delay, by 
respondent Kaushaliya Devi for setting aside abatement and 
seeking her substitution in place of plaintiff/appellant, in the 
appeal pending before the first appellate court or not. D 
Admittedly, original plaintiff, Ram Narayan died on 14.12.1994. 
It is not the case of the respondent Kaushaliya Devi that she 
had no knowledge of death of her father, nor is her case that 
she had no knowledge of the litigation pending before the first 
appellate court. Rather, the application for condonation of delay, 
E 
which is Annexure P-3 on the record, shows that after death 
ceremony of her father, she requested one Archana Gupta and 
her husband to prosecute the matter and they told
her that 
necessary steps had been taken. She further pleaded that her F 
brother Mangal Prasad (son of Ram Narayan) was missing. 
In their objections (Annexure P-5), the present appellants-
. denied that Mangal Prasad was missing. It is further stated 
that he is living with his family in Aliganj, Lucknow. It was pointed 
out on behalf of the present appellants before the first appellate G 
courtthatArchana Gupta moved an application for substitution 
claiming herself to be legal heir of the deceased, on the basis 
of a Will. It is also stated in the objections, supported by 
affidavit thatArchana Gupta was daughter of Ram Kripal, real 
brother of Ram Narayan. Her application was dismissed on 
H
482 
SUPREME COURT REPORTS 
(2015] 9 S.C.R. 
A 
09.01.2004. In paragraph 19 of the objections-, it is stated that 
same counsel had represented Archana Gupta and 
respondent Kaushaliya Devi before the first appellate court. 
Our attention is drawn to paragraph 4 of the affidavit of 
Kaushaliya Devi filed with application for substitution (Annexure 
. B P-4). 
9. Having gone through the papers on record, as 
discussed above, and keeping in mind the spirit of the provision 
contained in Rule 3 of Order XXll CPC read with Article 120 of 
C Schedule of Limitation Act, 1963, in our opinion, the first 
appellate court and the High Court have committed grave error 
in law in condonation of delay of more than eleven years in 
moving substitution application, and setting aside the 
abatement in the present case, particularly when the 
D respondenUdaughter of the deceased had full knowledge of 
death of her father and also of the litigation pending before the 
first appellate court. Delay cannot be condoned on insufficient 
grounds and by abusing the process of law. We do not find 
that any sufficient reason was shown by the respondent, before 
E . the courts below to get huge delay of eleven years condoned, 
for setting aside abatement, and her substitution. 
10. Therefore, the appeal succeeds. The impugned order 
dated 02.01.2014 passed by the High Court, and the order 
F 
dated 10.10.2007 passed by Additional District Judge/Special 
-Judge (E.C. Act), Gonda, in Miscellaneous Case
No. 08 of 
2006 are liable to be set aside, and are hereby set aside. No 
order as to costs. 
G 
Civil Appeal No. 7008 of 2015 
In view of judgment in Civil Appeal No. 7011 of 2015, this 
appeal stands disposed of. No order as to costs. 
H 
NidhiJain 
Appeals disposed of.