Case Note & Summary
The present litigation arises from a second appeal filed in 1994 which was disposed of as abated on 20.07.2012 due to the death of the sole appellant Shankar Deoji Sonwane on 24.11.2007. The legal heirs of Shankar filed Civil Application No. 14236 of 2013 seeking condonation of delay, setting aside abatement, bringing themselves on record, and restoration of the appeal. The respondent had also died, and his heirs were brought on record by order dated 28.02.2014 in Civil Application No. 1814/2014, which was under challenge. The court noted a checkered history including a similar application (Civil Application No. 6388/2013) that was disposed of, allowed due to misunderstanding, restored, and later recalled. The lis began with Regular Civil Suit No. 192/1980 filed in the Court of Civil Judge, Junior Division, Kannad for specific performance of contract. The suit was decreed, and the appeal was dismissed. The second appeal was filed in 1994. The applicants argued that they were ignorant of law and that another application was pending, but the court found the delay of 5 years and 6 months inordinate and not satisfactorily explained. The court held that the explanation was not sufficient cause and dismissed the application.
Headnote
A) Civil Procedure - Condonation of Delay - Setting Aside Abatement - Order 22 Rule 9 CPC, Section 5 Limitation Act - Applicants sought condonation of delay of 5 years and 6 months in filing application to set aside abatement of second appeal due to death of appellant - Court held that the explanation of ignorance of law and pendency of another application was not sufficient cause - Delay not satisfactorily explained - Application dismissed (Paras 1-10).
Issue of Consideration
Whether the applicants have made out sufficient cause for condonation of delay in filing application to set aside abatement and bring legal representatives on record.
Final Decision
The court dismissed Civil Application No. 14236 of 2013 and all connected applications, holding that the delay of 5 years and 6 months was not sufficiently explained and no sufficient cause was made out.
Law Points
- Condonation of delay
- Setting aside abatement
- Sufficient cause
- Limitation
- Order 22 Rule 9 CPC
- Section 5 Limitation Act
Case Details
2019 LawText (BOM) (01) 3
Civil Application No. 14236 of 2013 with Civil Application No. 3456 of 2003, Civil Application No. 5166 of 2014, Civil Application No. 14373 of 2018, Civil Application No. 14374 of 2018 in Second Appeal No. 144 of 1994
Mr. V.B. Garud for Appellants, Mr. A.R. Devakate for Respondent Nos. 1A to 1F
Shankar S/o Deoji Sonwane (since deceased through L.Rs.)
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Nature of Litigation
Civil application for condonation of delay, setting aside abatement, bringing legal representatives on record, and restoration of second appeal.
Remedy Sought
Applicants (legal heirs of deceased appellant) sought condonation of delay, setting aside abatement, bringing themselves on record, and restoration of Second Appeal No. 144/1994.
Filing Reason
The second appeal was disposed of as abated due to death of sole appellant; applicants filed this application to revive the appeal.
Previous Decisions
Second Appeal No. 144/1994 was disposed of as abated on 20.07.2012. Civil Application No. 6388/2013 for similar relief was disposed of, allowed due to misunderstanding, restored, and later recalled.
Issues
Whether the applicants have made out sufficient cause for condonation of delay in filing application to set aside abatement and bring legal representatives on record.
Submissions/Arguments
Applicants argued that they were ignorant of law and that another application (Civil Application No. 6388/2013) was pending, which caused the delay.
Respondent opposed the application, contending that the delay was inordinate and not satisfactorily explained.
Ratio Decidendi
The court held that ignorance of law and pendency of another application do not constitute sufficient cause for condonation of inordinate delay in filing application to set aside abatement. The delay must be satisfactorily explained, and the applicants failed to do so.
Judgment Excerpts
The Second Appeal No. 144/1994 filed on 28.11.1994 was disposed of as abated by order dated 20.07.2012 on account of death of sole appellant on 24.11.2007.
The lis began by Regular Civil Suit No. 192/1980 filed in the Court of Civil Judge, Junior Division, Kannad for specific performance of contract.
Procedural History
Regular Civil Suit No. 192/1980 was filed for specific performance of contract. The suit was decreed, and the appeal was dismissed. Second Appeal No. 144/1994 was filed on 28.11.1994. The sole appellant died on 24.11.2007. The second appeal was disposed of as abated on 20.07.2012. Legal heirs filed Civil Application No. 14236 of 2013 on 11.01.2019 seeking condonation of delay, setting aside abatement, bringing themselves on record, and restoration. Similar application Civil Application No. 6388/2013 was disposed of, allowed due to misunderstanding, restored, and later recalled. Respondent's heirs were brought on record by order dated 28.02.2014 in Civil Application No. 1814/2014.
Acts & Sections
- Code of Civil Procedure, 1908: Order 22 Rule 9
- Limitation Act, 1963: Section 5
