Section 5 of Limitation Act, 1963 – Application for setting aside abatement and application for condonation of delay in filing the former application – Principles to be kept in mind by the Court as laid down in Perumon Bhagvathy Devaswom v. Bhargavi Amma (2008) 8 SCC 321. [Para 8]
Section 5 of Limitation Act, 1963 – Circumstances that are considered sufficient cause summarised in Perumon Bhagvathy Devaswom v. Bhargavi Amma (2008) 8 SCC 321. [Para 9] Order XXII of Code of Civil Procedure, 1908 r/w Articles 120 and 121 of Limitation Act, 1963 – Time frames laid out in the said provisions discussed – Proper sequence to be followed explained:
Held: Order XXII of Code of Civil Procedure, 1908 – Rule 1 states that when a party to a suit passes away, the suit will not abate if the right to sue survives – Rules 3 and 4 deal with the procedure for bringing on record the legal representative(s) of the plaintiff/appellant and the defendant/respondent respectively when the right to sue survives – Limitation Act, 1963 – Article 120 states that the suit/appeal automatically abates when an application to substitute the legal representative(s) of the deceased party is not filed within the prescribed limitation period of 90 days from the date of death – Article 121 allows the appellant 60 days to file an application seeking setting aside of the abatement after the expiry of the aforesaid 90 days – After the expiry of the 150 days (90 + 60 days) the application to set aside abatement should be accompanied with a petition to condone delay under Section 5 of Limitation Act – Plaintiff/ appellant to satisfy the Court that sufficient cause prevented him/her from applying for setting aside the abatement within the period of limitation. [Para 11]
Rule 4 of Order XXII of Code of Civil Procedure, 1908 – Who has to present application for substitution - Examined in light of judicial pronouncements:
Held: In Union of India v. Ram Charan AIR 1964 SC 215, it was held that Rule 4 of Order XXII does not say who has to present the application and that usually it is the plaintiff/appellant who does it as it is he who stands to lose if the suit/appeal is abated – In Civil Appeal 13407/2024 the Respondent/ Defendant’s LRs had moved an application for substitution when the sole defendant (predecessor-in-interest of the Respondents herein) died – A justice oriented approach has to be applied while interpreting the provisions of the Code of Civil Procedure, 1908 as held by this Hon’ble Court in Chinnammal v. P. Arumugham (1990)
1 SCC 513 – Since the Court was thus informed of the death of the Respondent/Defendant and the heirs that he had left behind, the dismissal of second appeal as having abated cannot sustain. [Paras 14-16, 19]
Article 136 of Constitution of India – Power of Supreme Court to cure manifestly illegal order to avoid travesty of justice: Held: This Court reiterated the ratio in A. Subash Babu v. State of A.P. (2011) 7 SCC 616 that under Art. 136 it has power to pass orders in favour of a party suo motu when it is satisfied that compelling grounds for it exist even when the order is not in challenged before it – It has the power to mould relief taking notice an obvious error of law committed by the High Court. [Para 21]
Whether prayer of setting aside abatement inherent in the prayer for substitution:
Held: In Mithailal Dalsangar Singh v. Annabai Devram Kini (2003) 10 SCC 691 it was held that a simple prayer for bringing the legal representatives on record without specifically praying for setting aside of an abatement may in substance be construed as a prayer for setting aside the abatement – A prayer for bringing the legal representatives on record, if allowed, would have the effect of setting aside the abatement as the relief of setting aside abatement though not asked for in so many words is in effect being actually asked for and is necessarily implied – The Courts have to adopt a justice-oriented approach dictated by the uppermost consideration that ordinarily a litigant ought not to be denied an opportunity of having a lis determined on merits unless he has, by gross negligence, deliberate inaction or something akin to misconduct, disentitled himself from seeking the indulgence of the Court. [Paras 23, 32] Order XXII Rule 10-A, Code of Civil Procedure, 1908 – Purpose and whether it is complied with:
Held: It was inserted vide the amendment of 1976 in the CPC – Thereby, a duty is cast upon a pleader appearing for a party to the suit to intimate the Court about the death of such party and once the Court is informed by the pleader of a party that he is no more, the Court “shall” notify the opposing party of the death – Court’s obligation to issue notice to the other party is indeed mandatory except when the intimation to Court is given in presence of the opposite counsel or when the Court records it in the order sheet – The purpose for its introduction as held by this Court in Gangadhar v. Raj Kumar (1984) 1 SCC 121 is to specifically mitigate the hardship arising from the fact that the party to an appeal may not come to know about the death of the other party during the pendency of the appeal but when it is awaiting its turn for being heard – It is an innovative provision to see that administration of justice is not thwarted by technical procedural lapse whereby, a duty is cast upon the learned advocate appearing for the party who comes to know about the death of the party to intimate to the Court about the death of the party represented by him – A deemed continuation of the contract between dead client and lawyer subsists to the limited extent after the death of the client – It is implicit that this information must be conveyed in a straightforward and unambiguous manner to enable the plaintiff or the appellant, as the case may be, to take steps and apply for substitution – The inclusion of such pertinent information within an inconspicuous section of an application meant for a different purpose without the date of death does not constitute sufficient compliance with Rule 10-A. [Paras 27-30]
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Swathi Hariprasad, Hony. Associate Editor (Verified by: Kanu Agarwal, Adv.). Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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