Case Note & Summary
The matter arises from a partition suit (Special Civil Suit No. 198 of 1990) filed by two sisters against their four brothers. The suit was partly decreed on 31st March 1995, granting the sisters a 1/5th share each in the suit land and house. The sisters then preferred First Appeal No. 361 of 1995, which was dismissed for want of prosecution on 26th July 2005. Two of the brothers filed First Appeal No. 458 of 1995, which was admitted by the High Court on 13th December 1995 and an interim stay of possession was granted. During the pendency of that appeal, the second appellant, Musa Bandu Patel, died on 10th September 1996. The legal heirs of Musa (the present applicants) claimed that they only became aware of the pending first appeal in April 2009, after receiving summons in execution proceedings (Darkhast No. 860 of 2004) in October 2008. Consequently, in September 2009 they filed Civil Application No. 10301 of 2009 for bringing themselves on record as legal heirs, along with an application for condonation of delay. However, on 23rd September 2011, when the matter came up for hearing, the advocate for the applicants was engaged before another bench and could not attend. The Court, upon being informed that the appellant had died long back, passed an order observing that the appeal abates. Aggrieved, the applicants filed Civil Application No. 15265 of 2011 seeking to recall or set aside the said order, and also for condonation of delay in filing the application for that purpose. The applicants argued that they had no prior knowledge of the pending appeal and had acted swiftly after learning of it. They contended that the term "sufficient cause" under Section 5 of the Limitation Act must be liberally construed to advance substantial justice, relying on the Supreme Court's decision in Ramnath Sao v. Gobardhan Sao (AIR 2002 SC 1201). They submitted that the length of delay was not material, and the explanation offered should be accepted in the interest of justice. The respondents, on the other hand, submitted that the application was not maintainable and that the appeal had abated automatically long before, as the period for bringing legal heirs on record had expired within months of the death of Musa. They contended that the applicants had knowledge of the appeal much earlier, possibly even prior to the execution proceedings. They cited Katari Suryanarayana v. Koppisetti Subba Rao (AIR 2009 SC 2907) to argue that different considerations apply for condoning delay in suits and appeals, and that the delay of over 17 years should not be condoned. They also referred to Lanka Venkateswarlu v. State of A.P. ((2011) 4 SCC 363) to emphasize strict interpretation of limitation laws, and Balwant Singh v. Jagdish Singh (AIR 2010 SC 3043) where even a two-year delay was not condoned. The respondents stressed that Order 22 Rule 9 of the Code of Civil Procedure cannot be rendered redundant. The Court heard the rival submissions and took note of the legal principles. The text of the judgment provided, however, ends abruptly before the final decision is recorded. Therefore, the outcome of the application is not available in the excerpt. The judgment was pronounced orally by Justice S.S. Shinde on 30th January 2013.
Issue of Consideration
Whether the applicants have shown sufficient cause for recalling/setting aside the order dated 23rd September 2011 and for condoning the delay in filing the application for bringing legal heirs on record in First Appeal No.458 of 1995.
Law Points
- Sufficient cause under Section 5 of Limitation Act to be liberally interpreted
- advancement of substantial justice is primary function of court
- length of delay not material if explanation is bona fide
- different considerations apply for condoning delay in suits and appeals
- law of limitation to be interpreted strictly
- discretionary powers to be exercised judiciously
- provisions of Order 22 Rule 9 CPC cannot be rendered redundant
Case Details
2013 LawText (BOM) (01) 1
Civil Application No.15265 of 2011 in First Appeal No.458 of 1995
P.S. Pawar holding for S.D. Karkare for applicants; S.S. Kazi for respondent No.2; S.D. Hiwrekar for respondent No.3
Muntajir Ahemad Shaikh Musa and others (Legal heirs of Musa Bandu Patel)
1. Abdul Raheman s/o Bandu Patel, 2. Khurshidbi w/o Mohammad, 3. Banobi w/o Latif Shaikh, 4. Shaikh Daud s/o Bandu Patel, 5. Yusuf s/o Bandu Patel
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Nature of Litigation
Application for recalling/setting aside abatement order in first appeal and for condonation of delay in bringing legal heirs on record.
Remedy Sought
Applicants seek to set aside order dated 23rd September 2011 wherein the court observed that the first appeal abated, and to condone the delay in filing application for bringing legal heirs of deceased appellant on record.
Filing Reason
The applicants, legal heirs of original appellant no.2, claim that they became aware of the pending first appeal only in 2009 and thereafter filed application for bringing legal heirs on record; the court on 23rd September 2011, in their absence due to counsel's engagement elsewhere, passed order noting that appeal abates; hence they seek to recall that order.
Previous Decisions
The original suit (Special Civil Suit No.198/1990) was partly decreed on 31st March 1995, granting 1/5th share to plaintiff sisters. First Appeal No.458/1995 was filed by two brothers; earlier, First Appeal No.361/1995 by sisters was dismissed for want of prosecution on 26th July 2005. On 23rd September 2011, the High Court passed order observing that appeal abates.
Issues
Whether the order dated 23rd September 2011 should be recalled/set aside
Whether the delay in filing application for bringing legal heirs on record and for setting aside abatement should be condoned under Section 5 of the Limitation Act
Whether the applicants have shown sufficient cause for the delay of several years
Submissions/Arguments
Applicants: No knowledge of pending appeal until 2009; acted promptly thereafter; term 'sufficient cause' under Section 5 of Limitation Act must be liberally construed to advance substantial justice; length of delay is not material if explanation is bona fide; relied on Ramnath Sao v. Gobardhan Sao (AIR 2002 SC 1201).
Respondents: Application not maintainable; appeal abated automatically long ago; applicants had knowledge much earlier; inordinate delay of over 17 years cannot be condoned; different considerations apply for condoning delay in suits and appeals; sufficient cause not shown; strict interpretation of limitation law; Order 22 Rule 9 CPC cannot be made redundant; relied on Katari Suryanarayana v. Koppisetti Subba Rao (AIR 2009 SC 2907), Lanka Venkateswarlu v. State of A.P. ((2011) 4 SCC 363), Balwant Singh v. Jagdish Singh (AIR 2010 SC 3043).
Judgment Excerpts
the term 'sufficient cause' in Section 5 of the Limitation Act shall receive the liberal interpretation as held by the Supreme Court in the case of Ramnath Sao alias Ram Nath Sahu and others vs. Gobardhan Sao and others [AIR 2002 SC 1201]
What matter is the explanation offered by the applicants in support of their prayer for setting aside abatement order or for condonation of delay. Length of delay is not material. The primary function of the Court is to adjudicate the dispute between the parties and to advance substantial justice.
different considerations arise in the matter of condoning the delay in filing an application for setting aside an abatement upon condonation of delay in a suit and an appeal
provisions of Order 22 Rule 9 of the Code of Civil Procedure cannot be so construed so as to make it redundant.
Procedural History
The suit for partition (Special Civil Suit No.198/1990) was filed by sisters against four brothers. On 31st March 1995, the suit was partly decreed granting 1/5th share. Sisters filed First Appeal No.361/1995 which was dismissed for want of prosecution on 26th July 2005. Two brothers filed First Appeal No.458/1995 which was admitted and stay granted. Appellant No.2 Musa died on 10th September 1996. In 2009, legal heirs of Musa filed applications for bringing on record and condonation of delay (CA No.10301/2009). On 23rd September 2011, the court ordered that appeal abates. Present application filed seeking to recall that order and condone delay.
Acts & Sections
- Limitation Act, 1963: Section 5, Article 120, Article 121
- Code of Civil Procedure, 1908: Order 22 Rule 9
