Saturday, 22 June 2019

Whether one of co-owner can continue eviction suit against tenant?

In Shri Ram Pasricha (supra), the Apex Court observed that a co-owner is as much an owner of the entire property as any sole owner of a property is. It was further held that jurisprudentially it is not correct to say that a co-owner of a property is not its owner. He owns every part of the composite property along with others and it cannot be said that he is only a part-owner or a fractional owner of the property. The position will change only when partition takes place. The Apex Court ultimately held that it is not possible to accept the submission that the plaintiff who is admittedly the landlord and co-owner of the premises is not the owner of the premises within the meaning of Section 13(1)(f). It was further held that it is not necessary to establish that the plaintiff is the only owner of the property for the purpose of Section 13 (1)(f) as long as he is a co-owner of the property being at the same time the acknowledged landlord of the defendants.

In Bhuramal Ishwarlal Sindhi (supra), learned Single Judge of this Court held that it is settled position of law that notice given by one of the co-owners is valid and so also the suit instituted by one of the co-owners.

In Pal Singh (supra), the Apex Court held that the suit filed by the co-owner for eviction of the tenant is maintainable, if other co-owners are not objecting to the plaintiff-co-owner's claim for eviction.

In India Umbrella Manufacturing Co. & ors. (supra), a Division Bench of the Apex Court held that one of the co-owners can file a suit for eviction of a tenant in the property generally owned by the co-owners. It was further held that this principle is based on the Doctrine of Agency. One co-owner filing a suit for eviction against the tenant does so on his own behalf in his own right and as an agent of the other co-owners. The consent of other co-owners is assumed as taken unless it is shown that the other co-owners were not agreeable to eject the tenant and the suit was filed in spite of their disagreement.

In Mohinder Prasad Jain (supra), the Apex Court held that one of the co-owners can file a suit for eviction of a tenant of property generally owned by the co-owners and it is not necessary for such co-owner to obtain prior consent of other co-owners before initiating eviction proceedings before Rent Controller. It was, however, held that if the co-owner objects to such eviction proceedings, the same may be relevant.

IN THE HIGH COURT OF BOMBAY

Writ Petition Nos. 5822, 5828 and 5829 of 2012 and Writ Petition Nos. 4179, 4180 & 4181 of 2012

Decided On: 05.11.2012

 Baburao Ganpatrao Shirole Vs.  Deccan Education Society and Ors.

Hon'ble Judges/Coram:
R.V. More, J.

Citation: 2013 ( 1 ) MhLj 233



1. Rule. Rule is made returnable forthwith. By consent of the parties, the matter is taken up for final hearing. Heard Mr. Thorat, learned senior counsel and Mr. Kumbhakoni, learned counsel for the respective parties.

2. Since all these petitions arise out of various orders passed in a single suit and parties to the suit are being same, I propose to dispose of these writ petitions by passing this common order.

3. Writ Petition Nos. 5822, 5828 & 5829 of 2012 arises out of trial court's order rejecting the applications for bringing legal heirs of deceased plaintiff Nos. 2, 3, 8 & 9 on record. Writ Petition Nos. 4180 and 4181 of 2012 arises out of an order, whereby the legal heirs of deceased plaintiff Nos. 7 and plaintiff Nos. 10 and 12 are allowed to be brought on record. Writ Petition No. 4179 of 2012 arises out of an order of rejection of an application filed by defendant No. 1 for dismissing the entire suit as abated.

4. For convenience, the parties to the petitions are referred by their original nomenclature in the suit.

The dispute is about a property bearing Survey Nos. 82, 117, 224 and 225 total admeasuring about 36 Acres 36 Gunthas situated within the registration Sub-District, Taluka - Havili, District-Pune and within the limits of Pune Municipal Corporation at Bhamburda, Shivaji Nagar, Pune (hereinafter for the sake of brevity called as "the suit property"). Shri Rajaram Naroji Shirole, Shri Shyamrao Rajaram Patil-Shirole, Shri Bhagwantrao Rajaram Patil-Shirole and Shri Ganpatrao Rajaram Patil-Shirole are the original owners of the suit property. The said original owners have expired and their successors-in-interest, twenty-five in number, have filed Regular Civil Suit No. 381 of 1992 in Small Causes Court at Pune for recovery of possession of the suit property along with arrears of rent and mesne profits against the defendants. It is the case of the plaintiffs that the original owners entered into registered indenture of lease in favour on defendant No. 1-Society/Trust for the period of 99 years commencing from 1st July, 1891 for agreed yearly rent of Rs. 570/-. The lease period expired by efflux of time on 30th June, 1990. The plaintiffs after exchange of notices and correspondence and in view of their alleged entitlement to recover the possession of the suit property on the grounds mentioned under Section 13(1)(i), 13(1)(e) and 13(1)(k) of the Bombay Rents Act 1947 filed a suit for possession of the suit property.

During the pendency of the suit, various interim orders are passed by the trial court. These orders are carried up to Apex Court and the Apex Court ultimately directed the trial court to expedite the suit within time bound period viz. within 30th April, 2013.

During the pendency of the suit, the following plaintiffs expired:

Plaintiff No. 2 - 15th December, 2002

Plaintiff No. 3 - 21st August, 2008

Plaintiff No. 7 - 19th November, 1995

Plaintiff No. 8 - 28th January, 2008

Plaintiff No. 9 - 4th March, 2003

Plaintiff No. 10 - 15th January, 1999

Plaintiff No. 12 - 23rd January, 2002

The legal heirs of these plaintiffs thereafter filed various applications for bringing themselves on record. The applications of legal heirs of deceased plaintiff Nos. 2 & 3 were rejected by common order and the applications of the legal heirs of deceased plaintiff Nos. 8 & 9 were rejected by separate orders. The legal heirs of the deceased plaintiffs as stated above thereafter have filed Writ Petition Nos. 5822, 5828 and 5829 of 2012 respectively. The application of the legal heirs of deceased plaintiff No. 7 was allowed and, therefore, this order is challenged by defendant No. 1 by filing Writ Petition No. 4180 of 2012. The applications of legal heirs of deceased plaintiff Nos. 10 & 12 were also allowed by a common order and, therefore, defendant No. 1 has challenged this common order by filing Writ Petition No. 4181 of 2012. Defendant No. 1 also filed an application at Exhibit 216 for dismissing the suit as abated, which application was also rejected on 16th April, 2012 and, therefore, defendant No. 1 has filed a separate Writ Petition No. 4179 of 2012.

Thus, there are two sets of writ petitions. The first set of the petitions viz. Writ Petition Nos. 5822, 5828 and 5829 of 2012 are by legal heirs and representatives of the deceased plaintiffs, impugning orders whereby their applications for setting-aside abatement as well as bringing themselves as legal heirs of respective deceased plaintiffs on record have been rejected. The second set of writ petitions viz. Writ Petition Nos. 4179, 4180 and 4181 of 2012 are filed by original defendant No. 1 and it seeks to impugn orders of setting aside abatement and rejection of application for abatement of the entire suit.

5. Mr. Thorat, learned senior counsel, made following submissions :

The suit is pending for adjudication of the dispute between the parties and the trial has not commenced so far. The plaintiffs are successors-in-interest of the original owners of the suit property and they are landlords of the suit property. The suit is filed for eviction of the defendants from the suit property under the Bombay Rent Act on the ground of termination of lease by efflux of time as well as under various grounds provided under the Bombay Rent Act. The suit is filed by the plaintiffs as the co-owners of the suit property. The suit against the tenants can be filed by one of the co-owners unless there is a dispute between the co-owners and, therefore, death of one of the co-owners will not result in abatement of the suit. In cases where abatement takes place after demise of a party and where the entire proceedings abate, the Courts are justified in applying stricter principles for sufficiency of cause. However, the Courts should be very liberal in relation to cases where abatement takes place pending adjudication. Mr. Thorat, learned senior counsel, submitted that the petitions filed by the plaintiffs are required to be allowed and the petitions filed by the defendant No. 1 deserves to be dismissed.

He relied upon the decisions of the Apex Court in Sri Ram Pasricha versus Jagannath & ors. MANU/SC/0473/1976 : (1976) 4 SCC 184, Bhuramal Ishwarlal Sindhi versus Yakub Baig Shukrulla Baig 1981 Bom. C.R. 65, Pal Singh versus Sunder Singh (Dead) by LRs. & ors. MANU/SC/0404/1989 : (1989) 1 SCC 444, India Umbrella Manufacturing Co. & ors. Versus Bhagabandel Agarwalla (Dead) by LRs Savitri Agarwalla (Smt.) & ors. (2004) 3 SCC 178, Mohinder Prasad Jain versus Manohar Lal Jain MANU/SC/8054/2006 : (2006) 2 SCC 724, FGP Limited versus Saleh Hooseini Doctor and anr. MANU/SC/1629/2009 : (2009) 10 SCC 223, Collector, Land Acquisition, Anantnag & anr. Versus Mst. Katija & ors. MANU/SC/0460/1987 : (1987) 2 SCC 107, State of M.P. versus S.S. Akolkar MANU/SC/0490/1996 : (1996) 2 SCC 568, Ram Nath Sao @Ram Nath Sahu versus Gobardhan Sao 2002 (0) BCI 86, Kesho Kawadu Maral & anr. Versus State of Maharashtra 2005 (Supp) Bom. C.R. 226, Dolai Maliko (Dead) represented by his legal representatives & ors. Versus Krushna Chandra Patnaik & ors. MANU/SC/0311/1966 : AIR 1967 SC 49, Ram Gopal Sharma vs. 1st Additional District Judge, Meerut and ors. MANU/UP/0039/1993 : AIR 1993 All 124, Sardar Amarjit Singh Karla (Dead) by LRs & ors. Versus Pramod Gupta (Smt.) (Dead) by LRs. & ors. MANU/SC/1214/2002 : (2003) 3 SCC 272 and Shahazada Bi & ors. Versus Halimabi (since dead) by her LRs. MANU/SC/0569/2004 : (2004) 7 SCC 354.

6. Mr. Kumbhakoni, learned counsel appearing for defendant No. 1 made following submissions:

A bare perusal of the applications filed seeking condonation of delay caused in taking out applications for bringing legal heirs on record of the deceased plaintiffs demonstrate that the minimum delay caused is of about 3 1/2 years and the maximum delay caused is of 17 years. Majority of the applications have been filed after 10 years from the date of death of the respective plaintiff and, therefore, delay cannot be condoned especially when sufficient cause is not shown by the plaintiffs. In this regard, reliance is placed on the judgment of the Hon'ble Supreme Court in Balwant Singh (dead) versus Jagdish Singh & ors. MANU/SC/0487/2010 : (2010) 8 SCC 685.

Order XXII Rule 1, 2, 3, 4 & 9 demonstrates that where cause of action survives to the surviving plaintiff/s, it is not necessary to bring legal heirs of the deceased plaintiff/s on record. The application/s for bringing on record legal heirs of some of the plaintiffs are required to be filed only when the cause of action does not survive to the surviving plaintiff/s. In the present case, the fact that applications have been filed for bringing heirs of the deceased plaintiffs on record itself clearly demonstrates that even according to the plaintiffs, the cause of action does not survive to the surviving plaintiffs on death of some of the plaintiffs. Having taken such a step of not only filing such applications for bringing legal heirs of some of the deceased plaintiffs on record, but also seriously prosecuting the same in this Hon'ble Court including by filing cross writ petitions, it is not now open for the plaintiffs to say that cause of action did survive to the surviving plaintiffs.

As a result of dismissal of these applications for bringing legal heirs of some of the deceased plaintiffs on record, the suit indisputably abates, at least inasmuch as the deceased plaintiffs are concerned. The effect of such abatement is that the suit stands dismissed at least in respect of the deceased plaintiffs. Thus, the suit of some of the lessors filed against the lessee at least in respect of their share in the lease-hold property stands dismissed. Consequently, the suit will remain to be a suit filed by only some of the lessors against the lessee seeking eviction of the lessee from the leased premises only in respect of their respective share in the lease-hold property, the suit for a similar relief filed by the other lessors being dismissed. Even if such suit continues and is to be decreed, it will result into passing of conflicting decrees, the suit of some of the lessors being dismissed already due to abatement. This is impermissible in law. Where there is likelihood of passing conflicting decrees in one single suit, the suit as a whole abates.

Mr. Kumbhakoni, learned counsel, ultimately submitted that the petitions filed by the plaintiff deserves to be dismissed. The petitions filed by the respondent deserves to be allowed as no sufficient cause is shown for condoning delay and the suit be abated in toto.

7. At the outset, I will consider the submission of Mr. Kumbhakoni that the plaintiffs' suit will abate consequent upon the death of some of the plaintiffs and refusal of the trial court to bring their legal heirs on record. The suit, as stated above, is filed for recovery of possession of the suit property demised to the defendants under the indenture of lease dated 17th July, 1891. The suit is filed by successors-in-interest of the original owners. The plaintiffs admittedly are the co-owners and landlords of the suit property and in that capacity they have filed the suit.

In Shri Ram Pasricha (supra), the Apex Court observed that a co-owner is as much an owner of the entire property as any sole owner of a property is. It was further held that jurisprudentially it is not correct to say that a co-owner of a property is not its owner. He owns every part of the composite property along with others and it cannot be said that he is only a part-owner or a fractional owner of the property. The position will change only when partition takes place. The Apex Court ultimately held that it is not possible to accept the submission that the plaintiff who is admittedly the landlord and co-owner of the premises is not the owner of the premises within the meaning of Section 13(1)(f). It was further held that it is not necessary to establish that the plaintiff is the only owner of the property for the purpose of Section 13 (1)(f) as long as he is a co-owner of the property being at the same time the acknowledged landlord of the defendants.

In Bhuramal Ishwarlal Sindhi (supra), learned Single Judge of this Court held that it is settled position of law that notice given by one of the co-owners is valid and so also the suit instituted by one of the co-owners.

In Pal Singh (supra), the Apex Court held that the suit filed by the co-owner for eviction of the tenant is maintainable, if other co-owners are not objecting to the plaintiff-co-owner's claim for eviction.

In India Umbrella Manufacturing Co. & ors. (supra), a Division Bench of the Apex Court held that one of the co-owners can file a suit for eviction of a tenant in the property generally owned by the co-owners. It was further held that this principle is based on the Doctrine of Agency. One co-owner filing a suit for eviction against the tenant does so on his own behalf in his own right and as an agent of the other co-owners. The consent of other co-owners is assumed as taken unless it is shown that the other co-owners were not agreeable to eject the tenant and the suit was filed in spite of their disagreement.

In Mohinder Prasad Jain (supra), the Apex Court held that one of the co-owners can file a suit for eviction of a tenant of property generally owned by the co-owners and it is not necessary for such co-owner to obtain prior consent of other co-owners before initiating eviction proceedings before Rent Controller. It was, however, held that if the co-owner objects to such eviction proceedings, the same may be relevant.

In FGP Limited (supra), the Apex Court held that a co-owner can always maintain a suit for eviction. A co-owner of the property is an owner of the property till the property is partitioned. It was further held that if the status of the respondents as co-owners of the property transpires clearly from the admitted facts of the case, they cannot be denuded of the said status at the instance of some objections by the tenants.

In Dolai Maliko (supra), the Apex Court held that where the plaintiff or the appellant has died and all his heirs have not been brought on record because of oversight or because of some doubt as to who are his legal heirs, the suit or the appeal, as the case may be, does not abate and the heirs brought on record fully represent the estate unless there are circumstances like fraud or collusion.

In Ram Gopal Sharma (supra), the learned Single Judge of the Allahabad High Court was considering the position similar to the one in the case at hand and held that even if the heirs and legal representatives of the deceased plaintiff are not impleaded and the other co-owners are already on record, the right to sue survives.

A Division Bench of the Apex Court in Shahazada Bi (supra) held that where within the time limited by law, no application is made to implead the legal representatives of a deceased defendant, the suit shall abate as against a deceased defendant. This rule does not provide that by the omission to implead the legal representative of a defendant, the suit will abate as a whole

Thus the position of law is settled that a co-owner can file a suit for eviction of a tenant. In the present case, the suit is filed by the successors-in-title of the original owners and, therefore, they are co-owners. It is not the case of defendant No. 1 that there is dispute as to entitlement of recovery of possession of the suit property amongst the co-owners and, therefore, if one co-owner is entitled to maintain the suit, it logically follows that the death of one of the co-owners amongst several co-owners will not result in abatement. The Court can continue with rest of the co-owners/plaintiffs especially when the suit is pending adjudication before the trial court and the rights of the parties are not crystallized. The things, however, would be different in case of abatement of the appeal as against abatement of the suit. If during the pendency of appeal, the appeal is abetted against some of the appellants or respondents and the trial courts' decree is joint and indivisible, the same stands confirmed so far as these appellants or respondents are concerned and, therefore, the appeal could not be proceeded with against rest of the respondents as it would, in the event of success, result in conflicting decrees and, therefore entire appeal abates. The abatement of the suit and abatement of the appeal are two different things. As stated above, if the suit can be continued with rest of the co-owners-plaintiffs, then, certainly it cannot be said that suit is abetted as a whole, in the event of death of some of the co-owners/plaintiffs. In these circumstances, I do not find any merit in Writ Petition No. 4179 of 2012.

8. This takes me to consider, whether the applications filed by legal heirs of the deceased plaintiffs are within prescribed period of limitation, if same are not filed within limitation, whether sufficient cause is shown to condone the delay and bring themselves on record by setting-aside the abatement.

In Sardar Amarjit Singh Karla (Dead) (supra), the Constitution Bench of the Apex Court considered the object of Order 22 and held that the procedure under the said Order should be liberally construed, so as to serve as handmaid of justice. It was further held that it should be construed as a flexible tool of convenience with a view to do real, effective and substantial justice. The Apex Court held that in case of death of some of the appellants during pendency of the appeal, Court should allow the applications for bringing their legal heirs even if filed belatedly, having regard to serious manner in which it would jeopardise effective adjudication, on merits, rights of other remaining appellants. The applications of these natures should be liberally considered, whether decree appealed against is joint and in severable or severable and separable.

The Apex Court in Collector, Land Acquisition, Anantnag & anr. (supra), considered the provisions of Section 5 of the Limitation Act, 1963 and laid down the following guidelines for determination of existence of "sufficient cause".

1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.

2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.

4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.

5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.

In S.S. Akolkar (supra), the Apex Court held that it settled law that the consideration for condonation of delay under Section 5 of the Limitation Act and setting-aside of the abatement under Order 22 are entirely distinct and different. The Court always liberally considers the latter, though in some case, the Court may refuse to condone the delay under Section 5 in filing the appeals.

In Ram Nath Sahu (supra), the Apex Court held that condonation of delay is a matter of discretion of the Court and the length of delay is no matter, acceptability of the explanation is the only criterion. It was further held that sometimes delay of the shortest range may be unconscionable due to a want of acceptable explanation whereas in certain other cases, delay of a 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.

In Keshao Kawadu Maral and anr.(supra), the Division Bench of this Court held that even if proceedings get abated, the Court has ample powers to set aside the abatement and condone the delay as provisions of Order 22, Rule 1 are not penal in nature. It was also held that the period of limitation has to be computed from date of knowledge of death of a party.

9. In the light of the principles laid down by the Apex Court and Division Bench of this Court, let us consider whether legal representatives of deceased plaintiffs have made out a case for condonation of delay in setting-aside the abatement and bringing themselves on record of the suit. The legal heirs of deceased plaintiffs have specifically pleaded that the suit was conducted by their father and they were not directly involved in the matter and, therefore, they were not aware about the progress of the litigation and existence of the litigation. An averment is also made that recently when all the family members met on the sad demise of the father of the plaintiff No. 1A on 27th December, 2011, they came to know that there is some order passed by the Supreme Court and their father is also a party to the present suit and, therefore, rushed to the advocate and inspected the matter and came to know about the present matter. It is further averred that since they have no knowledge of technicalities of law, rules and regulations, it is necessary to condone the delay caused in bringing themselves on record by setting-aside the abatement. The trial court allowed the applications of legal heirs of deceased plaintiff Nos. 7, 10 & 12. While allowing these applications, the trial court relied upon the ratio of the Apex Court decision in Rangubai Kom Sankar Jagtap versus Sunderabai Bhratar Sakharam Jedhe & ors. MANU/SC/0007/1965 : AIR 1965 SC 1794 as legal heirs of these plaintiffs were brought on record in Miscellaneous Civil Appeal filed against interlocutory order passed in the suit. The applications of legal heirs of deceased plaintiff Nos. 2, 3, 8 & 9 were rejected as no sufficient cause was shown for condonation of delay. The orders rejecting and allowing the applications of the deceased plaintiffs are the subject matter of the above writ petitions.

10. As far as orders allowing legal heirs of deceased plaintiff Nos. 7, 10 & 12 are concerned, the same cannot be interfered in exercise of jurisdiction of this Court under Article 227 of the Constitution of India in the light of Apex Court decision in Ram Nath Sahu (supra) as the trial court has positively exercised the discretion and this Court should not disturb the same.

11. So far as the orders rejecting the applications of legal heirs of deceased plaintiff No. 2, 3, 8 & 9 are concerned, I am of considered opinion that the trial court committed an error. As stated above, the legal heirs of these deceased plaintiffs pleaded that they got knowledge of the proceedings before the Court and requirement of impleading themselves in the said proceedings when all the family members assembled after the death of father of plaintiff No. 1A on 27th December, 2011. Thereafter, applications are immediately filed in the month of January, 2012. In these circumstances, it cannot be said that the delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. In such cases, the Courts are required to adopt liberal approach while acceptance of "sufficient cause" and normally explanation should be accepted as a Rule and the rejection thereof should be in exceptional cases. Be that as it may, I have already held that the suit does not abate and same is maintainable despite demise of some of the plaintiffs especially when the same is filed under the Rent Act by the co-owners. If that be so, the interest of defendant No. 1 by no stretch of imagination can said to be prejudiced by bringing these legal heirs on record in place of the deceased plaintiffs, inasmuch as the suit by remaining plaintiffs can be proceeded with and decided on its own merits. In these circumstances, the delay occurred in taking out the applications for setting-aside abatement and bringing legal heirs of the deceased plaintiff Nos. 2, 3, 8 & 9 deserves to be condoned.

12. Reference must be made to a recent decision of the Division Bench of the Apex Court in Balwant Singh (supra) which is relied upon by learned counsel for defendant No. 1. Mr. Kumbhakoni heavily relied upon Para 26 of this judgment which reads as under :

26. The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly.
The Apex Court, in this judgment, reiterated and reproduced the approved guidelines given by another Bench of the Apex Court in Perumon Bhagvathy Devaswom which are 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 words 'sufficient cause' in Section 5 of the 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 bona fides, 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 decided the matter on merits. 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 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 re-filing 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 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.

Perusal of these guidelines, makes it clear that the words "sufficient cause" in Section 5 of the Limitation Act should receive liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bona fides, deliberate inaction or negligence on the part of the appellant. The Courts while dealing with these kind of applications, will have to keep in mind that a valuable right accrues to the legal representatives of the deceased respondent when the appeal abates. In the present case at the cost of repetition, I may reiterate that the delay cannot be said to have occurred on account of any dilatory tactics, want of bona fides, deliberate inaction or negligence on the part of the legal representatives of the deceased plaintiffs. It is true that the Courts should be cautious while exercising discretion in a liberal manner when valuable rights are accrued in favour of the party as a result of failure of other party to explain the delay by showing "sufficient cause". In the present case, however, defendant No. 1 cannot claim that valuable rights have accrued in its favour by demise of some of the plaintiffs and failure to bring their legal representatives on record. The suit, in the absence of deceased plaintiffs, is also perfectly maintainable and same does not abate in toto. This decision, therefore, will not be of much assistance to Mr. Kumbhakoni in opposing the applications of legal heirs of the deceased plaintiff Nos. 2, 3, 8 & 9 for setting aside abatement and bringing themselves on record.

13. Before parting with this order, the submission of Mr. Kumbhakoni based on provisions of Order XXII Rules 2 to 4 & 9 is also required to be dealt with. Mr. Kumbhakoni submitted that where the cause of action survives to the surviving plaintiff, it is not necessary to bring legal heirs of the deceased plaintiffs on record and an application for bringing on record legal heirs of the plaintiffs are required to be filed only and only when the cause of action does not survive to the surviving plaintiff. His submission is that since the applications have been filed for bringing legal heirs of the deceased plaintiffs on record itself clearly demonstrates that even according to the plaintiffs, the cause of action does not survive to the surviving plaintiffs on death of some of the plaintiffs. The submission has no merits. Firstly, none of the applications are made by the plaintiffs and these applications are made by the legal heirs of the plaintiffs who have expired. The legal heirs of the deceased plaintiffs could have applied under Order I Rule 10 of the Code of Civil Procedure, 1908, for adding themselves as parties. True, the applications are made under Order XXII Rule 3, however, the applications cannot be rejected merely because it is shown to have filed under wrong provision. The Courts have ample power to consider such applications under the provisions of Order I Rule 10. Mr. Kumbhakoni, in this regard, submitted that since there is specific provision under Order XXII, a party cannot resort to the provisions under Order I Rule 10. The submission cannot be accepted as it is the contention of Mr. Kumbhakoni himself that an application under Order XXII for bringing on record legal heirs of the plaintiffs are required to be filed only and only when the cause of action does not survive to the surviving plaintiffs.

14. In the light of the above observations, the writ petitions are disposed of in the following terms:

1. Writ Petition Nos. 5822, 5828 and 5829 of 2012 are allowed and Rule is made absolute. The applications of legal heirs of deceased plaintiff Nos. 2, 3, 8 & 9 at Exhibits 167, 169, 221, 223, 224 & 225 respectively are allowed in terms of prayer clauses (i) & (ii).

2. Writ Petition Nos. 4179, 4180 and 4181 of 2012 are dismissed and Rule is discharged as such.

At this stage, Mr. Pethe, learned counsel, seeks stay of this order for a period of six weeks. Mr. Chavan, learned counsel, opposes this prayer. However, in the interests of justice and in order to enable Mr. Pethe's client to approach the Higher Court, this order is stayed for a period of four weeks from today.


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