Case Note & Summary
The Supreme Court of India considered two civil miscellaneous petitions arising from a civil appeal against a decree for possession and mesne profits. The appellant, a widow, had been litigating since 1946 in a suit filed by the respondents for possession of property and mesne profits. The trial court decreed the suit in favour of the plaintiffs, and the appellant's first appeal to the Bombay High Court was dismissed on 8 April 1959. The appellant obtained special leave to appeal to the Supreme Court on 16 June 1959, and the appeal was admitted on 27 July 1961. Meanwhile, respondent No.7, Keshavarao Marutirao Jedhe, died on 12 November 1959. The appellant filed an application in the Bombay High Court on 7 March 1964 to bring the legal representatives of the deceased respondent on record, and a certificate was granted on 11 August 1964. In the Supreme Court, the appellant filed Civil Miscellaneous Petition No.2401 of 1964 for substitution of legal representatives and Civil Miscellaneous Petition No.2402 of 1964 for condonation of delay. The delay was over three and a half years, excluding the time taken for the High Court certificate. The appellant attributed the delay to being a poor widow with no male member to look after proceedings, and contended that because the legal representatives were already brought on record in final decree proceedings for mesne profits, no abatement occurred in the appeal. The respondents opposed the applications, arguing that the appellant had been conducting litigation since 1946, had a son-in-law assisting her, lived near the deceased, and knew of his death from newspapers. The central legal question was whether an order bringing legal representatives on record in a suit after an appeal has been filed can enure for that appeal. The Court held that no sufficient cause existed to condone the delay, as the appellant had knowledge and assistance but failed to act promptly. On the legal issue, the Court distinguished Brij Inder Singh v. Kanshi Ram, which held that substitution at one stage of a suit enures for all stages, but only where the order is made in an appeal or revision from an interlocutory order or where the suit is subsequently remanded. The Court held that an order made in a suit subsequent to the filing of an appeal cannot be projected backwards into the appeal already filed; the appeal is a continuation of the suit only in the former circumstances. Consequently, the appeal abated as against respondent No.7, and the applications were dismissed.
Headnote
A) Limitation - Condonation of Delay - Sufficient Cause - Supreme Court Rules, 1950, Order XVI Rule 14 and Indian Limitation Act, 1908, Article 171 - The appellant sought condonation of over three and a half years' delay in applying to bring deceased respondent's legal representatives on record, pleading poverty, widowhood, and absence of male help, but the court found she had been litigating since 1946, had assistance of son-in-law, lived near the deceased, and knew of his death through newspapers and final decree proceedings. Held that no sufficient cause existed to excuse the inordinate delay, as lack of diligence was not condonable, and the application for condonation was dismissed (Paras 212-214). B) Civil Procedure - Abatement of Appeal - Enurement of Substitution in Final Decree Proceedings - Code of Civil Procedure, 1908, Order XXII Rules 3, 4, 11 read with Supreme Court Rules, 1950, Order XVI Rules 14, 14-A - The main legal question was whether bringing legal representatives of respondent No.7 on record in final decree proceedings for mesne profits automatically enured for the pending appeal against the preliminary decree. The court distinguished Brij Inder Singh v. Kanshi Ram, holding that an order made in a suit subsequent to filing of an appeal cannot be projected backwards into the appeal already filed; only orders made in interlocutory proceedings or when suit is remanded can enure for later stages because the appeal is a continuation of the suit. Held that the appeal abated as against respondent No.7, as the substitution in final decree proceedings did not prevent abatement of the earlier appeal (Paras 214-217).
Issue of Consideration
Whether there was sufficient cause to condone the delay in filing the application to bring the legal representatives of the deceased seventh respondent on record; and whether bringing the legal representatives on record in the final decree proceedings enured for the benefit of the pending appeal, thereby preventing abatement.
Final Decision
Applications dismissed; delay not condoned; appeal held to have abated so far as respondent No.7 was concerned. The order bringing legal representatives on record in final decree proceedings did not enure for the pending appeal.
Law Points
- Order bringing legal representatives on record in final decree proceedings cannot enure for pending appeal
- appeal and suit are distinct for abatement
- substitution at one stage of suit enures for all stages only if order made before appeal or in pending appeal that is continuation
- delay condonation requires sufficient cause
- poverty and ignorance not sufficient without diligence
