M. Nagabhushana Reddy (Died per L.Rs.), Midakanthi Sehshamma, Midakanthi Veena and Midakanti Thirumala Reddy Vs Mohd. Moulana and Others

@JUDGMENTTAG-ORDER

Dr. B. Siva Sankara Rao, J.

1(a)(i). The A.S.M.P. Nos. 2080, 2081 and 2082 of 2013 are filed seeking to condone the delay of 3268 days in filing the application to bring on record the legal representatives of the 1st respondent as respondents 3 to 6 of the appeal by setting aside the abatement caused therein and to implead the respondents 3 to 6 as legal representatives of the deceased 1st respondent.

1(a)(ii). A.S.M.P. Nos. 2084, 2085 and 2086 of 2013 are filed seeking to condone the delay of 2253 days in filing the application to bring on record the legal representatives of the 2nd respondent as respondents 7 to 10 of the appeal by setting aside the abatement caused therein and to implead them as legal representatives of the deceased 2nd respondent.

1(b). The law is well settled that though under Rule 55 of the Civil Rules of Practice for each distinct prayer, a separate application has to be filed which is even following in the High Court Procedure save to the extent not covered by the High Court Rules on original and appellate side, the same is not an universal rule and much depends upon nature of relief''s. The consequential relief''s are in fact exempt from requirement of the Rule 55 and one application filed u/s 5 of the Limitation Act to condone the delay and also to set aside an ex-parte decree is sufficient if the facts mentioned thereon and no separate applications are thus required as held in Kavali Narayana and Others Vs. Kavali Chennamma, . Thus, so far as application to bring the legal representatives on record and to set aside the abatement by condoning the delay is concerned, a single application is even enough, if the sufficient facts are thereon record as required by the provisions of Section 5 of the Limitation Act to condone the delay and under Order XXII read with Articles 121 and 120 to set aside the abatement of 60 days after the 90 days time to bring the legal representatives from the date of death. Further, the affidavit averments in support of the petitions are common and the counter affidavit contest also mostly common, for convenience sake, all the applications are taken up for common disposal.

1(c). These applications are filed by the petitioners, who are appellants 2 to 4 and the legal representatives of the deceased sole appellant already brought on record, with supporting affidavit of the 4th appellant for and on behalf of them.

1(d). The facts relevant to the list to condone the delay u/s 5 of the Limitation Act and to set aside the abatement caused in timely non-filing of the legal representative application to bring the legal representatives of late 1st and 2nd respondents are mentioned in the affidavit in paras 7 to 12 (thus not necessary to go through the affidavit paras 2 to 6 averments touching the main lis on merits) that when the appellants were enquiring their advocate about the progress of the case, it was stated by him that he would inform whenever the matter is listed; that after Summer Vacation of 2013, in the first week of June, when again they contacted their advocate about the progress of the case and it was informed and advised of not yet listed, however, to enquire about the existence of the respondents owing to their old age; that thereafter the 4th petitioner from his residence at Khammam town gone to the respondents village of Yedulapuram on 30.06.2013 and to his surprise, came to know on enquiry on that day that both respondents 1 and 2 died long back; that the same was informed immediately to the advocate; that upon that on his advise, he got the names of legal representatives; and came to know that the 1st respondent died on 10.04.2004 and the 2nd respondent died on 19.1.2007 and each left behind respective wife, two sons and daughter and furnished the said details to his advocate in the last week of July, 2013 and hence, the delay which is neither deliberate nor intentional in filing the petitions to bring the legal representatives of 1st respondent as respondent Nos. 3 to 6 and of 2nd respondent as respondent Nos. 7 to 10.

1(e). Undisputedly, no supporting affidavit of the advocate is filed, at least to say, after so-called coming to know and furnishing of the information in the last week of July, 2013 what made to cause further delay in filing the legal representative application and what is the explanation particularly for the delay in filing the legal representatives'' application only on 27.08.2013 i.e. more than 27 days after full particulars of the legal representatives of the respective respondents 1 and 2 furnished. Thus, there is no explanation whatsoever furnished much less acceptable explanation of any just and suffice cause in said affidavit of the 4th petitioner, for the said one month period, leave about the believing or not on merits as to only on 30.06.2013 came to know by the appellants the death of both respondents 1 and 2 on enquiry at their village and even went and enquired at the village, not known the particulars of the legal representatives of them on that day at their village but for till last week of July, 2013 and for that no explanation if not at the village on 30.06.2013; how came to know later.

(a). In the counter affidavit filed by the proposed legal representatives of the 2nd respondent, while not disputing on the fact that they are the only legal representatives, they contend that the averments of 4th petitioner went to respondents village only on 30.06.2013 and came to know death of the respondents 1 and 2 of the appeal on that day is a deliberate lie, untrue, ridiculous and if it is taken to be true it indicates the absolute indifference and callousness and that they cannot resort to such pleas to overcome the belated filing of the petitions with huge delay. It is further stated that none of the reasons assigned in the affidavit, explain the actual or real reasons for the delay.

1.1(b). It is further contended that a suit for specific performance mandates the continuous readiness and willingness before one gets entitled to seek the equitable relief and the claim of the petitioners to succeed fundamentally rests on the eagerness to pursue their claim which is clearly lacking in this case and hence prayed to dismiss the applications in the interest of justice.

2(a). Heard both sides at length. Perused the respective pleadings and the decisions relied upon by both the parties, which are being referred as per context to avoid repetition, while dealing with the factual matrix.

2(b). Now the common points arise for consideration in determination of the applications are:

i) Whether there is any just and sufficient cause respectively to condone the delay and to set aside abatement caused from the death of 1st and 2nd respondents from date of their death respectively in filing the respective applications to bring on record the legal representatives of 1st respondent as respondent Nos. 3 to 6 and of 2nd respondent as respondent Nos. 7 to 10 and if so with what terms and conditions?

ii) To what result?

3. Admittedly, there is no statutory law laying a separate criteria in considering the application for condonation of delay in a suit for specific performance, much less, any principle of law laid down by any Constitutional Court saying delay to be condoned is with reference to the principles of law laid down by Sections 16 and 20 of the Specific Performance Act and thereby every day readiness and willingness that is required to be explained to get the equitable relief equally applies to condone the delay in bringing the legal representatives of a party died pending the proceedings u/s 5 of the Limitation Act, but for to say the general criteria u/s 5 of the Limitation Act of each days delay to be explained unless what was explained for the entire period of delay in on same cause.

4. From the above, now coming to the scope of law on the criteria to consider delay in filing a legal representative application and what is meant by just and sufficient cause and whether approach be rigid or pragmatic and some what liberal and when to allow the procedural justice (as part of adjectival law) in scoring a march over substantial justice and whether non-performance of the duty by counsel of defendants/respondents under Order XII Rule 10A, absolves the responsibility of the plaintiffs/appellants to bring on record any legal representative/s of deceased defendant/respondent, but for in absence of knowledge to say only from that memo of intimation of death came to know of the fact to condone the delay till then as a just cause to explain for subsequent period day to day delay, the law is well settled by catena of expressions and the relevant are the following:

4(i). In Lanka Venkateswarlu (D) by L.Rs. Vs. State of A.P. and Others, , it was held by the Apex Court that cogent reasons have to be assigned by the parties to condone the delay and each case depends on its own facts in this regard to decide as to what is explained is just cause or not.

4(ii). In Improvement Trust, Ludhiana Vs. Ujagar Singh and Others, it was observed that while considering the application for condonation of delay no straitjacket formula is prescribed to come to the conclusion whether sufficient and good grounds have been made out or not and each case has to be weighed from its facts and the circumstances in which the party acts and behaves. It is further observed that it is the duty of the Court to see to that justice should be done. Unless the behaviour of a party is callous and negligent in prosecuting the case, generally as a normal rule, delay should be condoned.

4(iii). In Katari Suryanarayana and Others Vs. Koppisetti Subba Rao and Others, , it was held at para-11 that "It may be true that a distinction exists where an application for setting aside of the abatement is filed in a suit and the one which is required to be filed in a second appeal before the High Court but the same, in our opinion, by itself may not be sufficient to arrive at conclusion that the parties were not aware of the consequences thereof. Appellants themselves rely on provisions of Order XXII Rule 10A which was inserted by reason of CPC (Amendment) Act, 1976. It does not, however, provide for consequences. It does not take away the duty on the part of the plaintiff or the appellant, as the case may be, to file an application for condonation of delay in bringing on record the heirs and legal requirements of a deceased plaintiff/appellant or defendant/respondent within the period prescribed. Thus the mandate of the Apex Court is very clear that the duty of the party advocate appearing for a party to direct to the Court about death of a party is different from the diligence and duty of an application which is bound to bring the legal representatives on record.

4(iv). In S. Amarjit Singh Kalra (dead) by Lrs. and Others and Smt. Ram Piari (dead) by L.Rs. and Others Vs. Smt. Pramod Gupta (dead) by Lrs. and Others, , it was held by the Constitutional Bench of the Apex Court that in case of death of some of the appellants during pendency of proceedings, court should allow the applications for bringing their legal representatives on record even if it is filed belatedly, having regard to the serious manner in which it would jeopardize effective adjudication, on merits, rights of other remaining appellants and thus application for condonation of delay should receive liberal consideration so as to advance the substantial justice, whether the decree appealed against is joint and in-severable or even severable and separable.

4(v). In Ram Nath Sao @ Ram Nath Sahu and Others Vs. Gobardhan Sao and Others, the Apex Court observed that the applications to condone the delay should receive liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to party.

4(vi). In Vedabai v. Shantharam 2000 (1) LS 168- it was held by the Apex Court referring to the earlier expressions that in deciding the application for condonation of delay, the expression sufficient cause must be construed liberally for advancing substantial justice.

4(vii). In Abdul Jabbar Vs. S.N.A. Nazarath, it was held by our High Court referring to the earlier expressions of the Apex Court, that in deciding the application for condonation of delay, neither the fact that period of delay is enormous, nor was short would legitimately tilt the scales, undaunted and unperturbed by mere length in the period of delay. The Courts shall proceed to consider existence of sufficient cause or not. Courts shall not be prejudiced by the fact that delay was enormous, nor it should lean in favour of sufficient cause. u/s 5 of the Limitation Act, the court has to see substantial Justice involved in the matter and consider sufficient cause so as to sub-serve the ends of Justice. Mere delay or inaction of parties is not sufficient to refuse the petition to condone delay unless it is a deliberate and calculated one with a malafide intention.

4(viii). In Dudam Bharathi Vs. Gajula Sujatha (Plaintiff) and Others, , it was held by our High Court referring to the earlier expressions of the Apex Court and of the High Court that in deciding the application for condonation of delay, what is sufficient cause is kept elastic and Courts are conferred with unfettered discretion to do substantial justice considering the facts and circumstances of case on hand, though delay cannot be condoned on equitable grounds unless held there exists sufficient cause.

4(ix). In P.K. Ramachandran Vs. State of Kerala and Another, , the Supreme Court held that, Court has no power to condone delay on equitable grounds but for by recording satisfaction on explanation as sufficient cause to condone to render substantial justice.

4(x). In N. Balakrishnan Vs. M. Krishnamurthy, the Supreme Court while laying down guidelines as to how to condone delay and power of the Court u/s 5 of the Limitation Act, 1963 is to be exercised, held at paras 9-13 that:

9. It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in regional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammeled by the conclusion of the lower court.

10. The reason for such a different stance is thus: The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. Time limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause.

11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest rei publicae ut sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.

12. A Court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" u/s 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain v. Kuntal Kumari & State of West Bengal v. Administrator, Howrah Municipality.

13. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should lean against acceptance of the explanation. While condoning delay the Court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite a large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the court shall compensate the opposite party for his loss.

4(xi). In Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, it was held that the application for condonation of delay should receive liberal construction so as to advance the substantial justice.

4(xii). In Sarpanch, Lonand Grampanchayat Vs. Ramgiri Gosavi and Another, the Apex Court observed as follows: "The Authority has discretion to condone the delay in presenting the application provided sufficient cause for the entire delay is shown to its satisfaction. This discretion like other judicial discretion must be exercised with vigilance and circumspection according to justice, common sense, and sound judgment. The discretion is to know through law what is just."

4(xiii). In Ramlal v. Reva Coalfields AIR 1964 SC 215, it was held that in construing Section- 5 limitation applications, it is relevant to bear in mind two important considerations i.e. (i). that the expiration of period of limitation prescribed for making the application/appeal gives rise to right in favour of other party and (ii). Which cannot be ignored is that if sufficient cause to condone the delay for exercise of discretion by court.

4(xiv). The above principles of law clearly visualizes that the expression sufficient cause that requires to be established must be given liberal construction with all elasticity in a pragmatic way to render substantial justice unless there is deliberate inaction on the part of the parties.

In this regard, now coming to the scope of Order XXII Rule 10A in its reading with reference to Section 5 Limitation Act.

4(xv). It is also laid down by the Apex Court in another exertion relied upon by the petitioners in Gangadhar and Another Vs. Raj Kumar, , it was held as under: "When the appeal on being notified for hearing is activated, knowledge occasionally dawns that one of the other party has not only died, but the time for substitution has run out, and the appeal has abated. In order to see that administration of justice is not thwarted by such technical procedure lapse, this very innovating provision (Order XXII Rule 10A) has been introduced whereby, a duty is cast upon the learned advocate appearing for the party who comes to know about death of the party to intimate to the Court about the death of the party represented by the learned counsel and for this purpose a deeming fiction is introduced that the contract between dead client and lawyer subsists to the limited extent after the death of the client.

4(xvi). At para-3 in continuation of further discussion by referring to the earlier expressions of the Apex court, it was observed that in order to avoid procedural justice scoring a march over substantial justice such Rule 10A of order XXII was introduced by the CPC (Amendment) Act of 1976. It referred the earlier expression in Bhagwan Swaroop and Others Vs. Mool Chand and Others, that earliest knowledge about the death of the deceased can be attributed to the appellants on 01.07.1981 when Rajkumar applied for substitution. Promptly within two weeks the application for substitution was made by the appellants. Therefore it is satisfactorily established that the appellants were prevented by a sufficient cause in making the application earlier. It also discussed by finding fault with the observation of the High Court that it is for the appellants to show when they came to know about death of the deceased respondent and assign reasons however only to the extent therein in so observing ignored the amended provision under 1976 C.P.C. under Order XXII Rule 10A referred above."

4(xvii). In fact, there is nothing to show from the expression that the law laid down to that extent by the same Apex Court in Union of India (UOI) Vs. Ram Charan and Others, was not hold good and it was referred and followed which even clearly laid down that it is for the appellants to show when they came to know about the death of the deceased-respondent, and assign reasons why they did not come to know about it early and satisfy the Court for the delay.

4(xviii). In this context on the scope of Order XXII Rule 10A, whether that can be taken as a substantive advantage to say till then no application need be filed to bring legal representatives on record even required to file along with any application to set aside abatement and condone the delay by saying that only cause. It is not the law as had it been it could be mentioned that till the time of intimation by opposite party advocate about the death of his client, no limitation has to run or Section 5 limitation or Article 121 and 120 of limitation shall not commence. There is no such clause much less non-obstinate clause by non-applying or by overriding Section 5 of the Limitation Act though both are part of the adjective law. There is no irreconcilability even between the two provisions, to go to decide which of the two provisions will prevail over the other or to say from both are part of central legislations to prevail later provision over the earlier provision to give precedence to the Order XXII Rule 10A amended provision under 1976 C.P.C. over Section 5 of the Limitation Act, to prevail among them. Thus from the above, irrespective of duty cast on advocate to inform death of his client, that does not absolve the appellant/plaintiff from taking steps to implead from date of death within 90 days and if awaited later after 60 days to set aside and for subsequent period to condone the delay, at best, by stating lack of knowledge till intimation of death by the other side as a sufficient cause, however, for subsequent period the explanation of sufficient cause in such cases is something different.

4(xix). In Ram Nath Sao @ Ram Nath Sahu and Others Vs. Gobardhan Sao and Others, , it was held in condoning delay and setting aside abatement in bringing legal representatives on record that acceptance of explanation furnished should be the rule and refusal is an exception, more so when no negligence or inaction or want of bona fides, as the expression sufficient cause should receive liberal construction so as to advance substantial justice.

4(xx). It is the settled proposition of law that a little change in the facts may tilt the result of a case and thereby there are no precedents on facts but for on principle.

4(xxi). From these propositions of law, now on the factual matrix of the case, in Katari Suryanarayana (cited supra) strongly relied upon by the respondents in opposing the applications in saying almost on same facts concerned, the facts on hand are entirely different to the facts of that case though appears to be correlated.

5. Here in the factual matrix of the Apex Court''s decision in Katari Suryanarayana (cited supra), it was observed from there that it is difficult to believe that they being neighbours have no knowledge about the death to consider the so called explanation thereby it was rightly rejected for the long delay of 2881 days and 601 days respectively. Here the factual matrix is entirely different as can be seen from the affidavit of the 4th petitioner referred above that he is a resident of Khammam town and the respondents are residents of Yedulapuram village and both are at different places far off to each other though within the district and as such it is difficult to attribute by applying the same analogy of the supposed to know date of death immediately. In the absence of which, it is only to see how far the explanation given by the 4th petitioner in his affidavit regarding sufficient cause there or not to condone or not of the delay of 2881 days to consider. So far as the period of limitation explained from date of death of the 2nd respondent to the date 30.06.2013 as per the enquiry made by the 4th petitioner on the advise of his advocate by going to the Village of the respondents about they are alive or not and came to know then only are concerned, it is nothing but same explanation for the said length of delay and there is nothing to disbelieve on any specific reason from the counter affidavit of the respondents. It is not even the case of the respondents in opposing the petition that they already intimated the death and it is looked out of the parties to enquire that who are the legal representatives and what are their addresses to the delay in filing the applications. When such is the case, now coming to the subsequent period said to have been taken for the delay from 30.06.2013 concerned, it is some how appearing odd to believe same affidavit version of the deponent 4th petitioner that it took till last week of July for him to enquire after 30.06.2013 even when he went to the village of the respondents and came to know the death of respondents 1 and 2, to know who are the legal representatives of said 1st and 2nd respondents. Having gone to the village and enquired about the death, is it believable that he could not be informed who the legal representatives are. That could be not a difficulty, had it been enquired from voters list or any ration shop dealer or panchayat office about the family members, at least to say to bring on record substantial representation. Thus from 30.06.2013 till last week of July the so called explanation given by the deponent is not consistent and cogent to give same credence had the earlier version believed. Further the sworn affidavit of him says from paras-10 to 12 that he immediately passed on the information to his advance to file legal representatives application with delay condonation and abatement set aside applications respectively. However, admittedly the applications were filed in the Registry only on 21.08.2013 that is mentioned as on the date of presentation, though practically it was filed as per the stamp on 27.08.2013; that is to say there is no credible explanation as discussed earlier for the said more than 27 days at least after passing on the information to the advocate in filing the legal representatives applications and connected petitions. Then it is for the Court there from to consider the consequences and justness or not for the said delay from 30.06.2013 to 27.08.2013. In this regard though the petitioner cited the decision of this Court in N. Sankar Reddy Vs. N. Rami Reddy (Died) and Others, observation that this Court has taken view in several matters that the limitation to file an application to bring the legal representatives of a party to the suit, on record would commence from the date, on which the other party in the suit, receives the intimation through a memo filed under Rule 10A of Order XXII C.P.C. This stray observation by the Court, not even laid as a proposition of law from any reference to the provisions of law and precedence and thereby that observation is not a precedent besides, as discussed already, runs contrary to the mandate of the Apex Court in Katari Suryanarayana (supra) among other expressions. Thereby, this proposition no way comes to the rescue of the petitioners to say that as they were not intimated the death of respondents 1 and 2 to the appeal by the other side counsel and thereby the question of filing application of Articles 121 and 120 and Section 5 Limitation to compute to set aside abatement and to condone the delay does not arise, apart from such a contention is not only contrary to law but also against the settled principles laid down by several expressions of the Apex Court discussed above. As it is not even the case that there is already any even one of legal representatives respectively already on record, in whatever capacity it may be, and as such regardless of memo not filed to record the fact, there is no application of Articles 121 and 120 and Section 5 of Limitation Act but for Article 13 to bring other legal representatives on record as held at para-4 in Depatla Ammannamma Vs. D. Ramireddy and Others, in Mahabir Prasad Vs. Jage Ram and Others, .

6. Thus, now to consider how far to believe the explanation given for said 27 days as to within the expression of sufficient cause or not. From these facts, with reference to law, it is since the settled proposition including from the observations in the decisions cited supra relied upon by 1 both the sides that the approach required to be adopted is pragmatic and somewhat liberal to subserve the justice and unless the Court found that the inaction is deliberate and wanton and uncondonable as otherwise it affects the substantial rights of the parties from the procedural lapse.

7. Having regard to the above facts and circumstances and by taking into consideration the same, and the non satisfactory explanation for the delay from 30.06.2013 to 29.08.2013, which though not a deliberate and uncondonable inaction but for to construe liberally and pragmatically within the sweep of sufficient cause, the same can be condoned by applying the above principle to the present facts, for there is nothing to show any deliberate in action on the part of the appellants/Petitioners in the delay occurred in filing the petitions seeking to condone delay but for the cause of they were at different places, which can be compensated by awarding reasonable costs. Accordingly, the Section 5 Limitation petitions are allowed by awarding costs of Rs. 5000/- (Rupees Five thousand only) each on the two sets of delay condonation applications in filing the petitions to bring legal representatives of the respondent Nos. 1 and 2 respectively on record as respondents 3 to 6 & 7 to 10 payable by the petitioners to said respondents of their advocate on record or to the Chief Justice Relief Fund said Rs. 5000/- + Rs. 5000/- on or before 06.12.2013. The other applications to set aside the abatement and bring on record the legal representatives of the respondent Nos. 1 and 2 respectively as respondents 3 to 6 & 7 to 10 are consequently allowed. For ''further orders'' or ''for dismissal'' call on 06.12.2013.