Case Note & Summary
The case involves a civil application filed by Smt. Radhabai Vithal Waikar (the applicant) seeking to quash an order dated 1st March 2006 passed by the Registrar (Judicial-I) allowing CAS/356/2006, and to pass an order of abatement of the proceedings of Second Appeal No. 529 of 1999. The applicant also sought condonation of delay of 5 years and 262 days in filing the civil application. The background facts are that one Mrs. Zende executed a Will on 9th September 1982, making Mr. Laxmanrao S. Shinde the sole beneficiary. Shinde filed Misc. Application No. 640 of 1987 for probate, which was rejected on 6th January 1992. He then filed Civil Appeal No. 558 of 1992 in the District Court, which was allowed on 31st March 1998. The original respondent (now applicant) filed Second Appeal No. 529 of 1999 in the High Court against that order. The second appeal was dismissed for default on 11th July 2000. Subsequently, the sole respondent Laxmanrao died on 18th November 2005. The applicant filed the present civil application in 2006 seeking abatement of the second appeal and condonation of delay. The legal issues were whether the applicant had shown sufficient cause for the delay and whether the application for abatement was maintainable after the appeal had been dismissed for default. The applicant argued that she was under the impression that the appeal would be heard on merits and that the delay was due to the death of the respondent. The respondents opposed, stating that the appeal was dismissed in 2000 and no steps were taken for years. The Court analyzed that the applicant failed to provide a satisfactory explanation for the inaction from 2000 to 2006. The Court held that the applicant did not make out sufficient cause for condonation of delay, and the application for abatement was not maintainable as the appeal was not pending. The Court dismissed the civil application with no order as to costs.
Headnote
A) Civil Procedure - Condonation of Delay - Sufficient Cause - Section 5 of Limitation Act, 1963 - The applicant sought condonation of delay of 5 years and 262 days in filing an application to set aside dismissal of second appeal for default and to declare abatement of the appeal. The Court held that the applicant failed to show sufficient cause for the delay, as the explanation that the applicant was under the impression that the appeal would be heard on merits was not acceptable, especially when the appeal was dismissed for default in 2000 and the applicant took no steps for over 5 years. (Paras 1-10) B) Civil Procedure - Abatement of Appeal - Dismissal for Default - Order 41 Rule 19 of Code of Civil Procedure, 1908 - The applicant sought abatement of the second appeal on the ground that the sole respondent had died and his legal representatives were not brought on record. The Court noted that the appeal had already been dismissed for default in 2000, and the application for abatement was filed in 2006, which was not maintainable as the appeal was not pending. The Court refused to set aside the dismissal order or condone the delay. (Paras 1-10)
Issue of Consideration
Whether the applicant has made out sufficient cause for condonation of delay of 5 years and 262 days in filing the civil application seeking abatement of the second appeal and setting aside of the order dismissing the appeal for default.
Final Decision
The civil application is dismissed. No order as to costs.
Law Points
- Condonation of delay
- Sufficient cause
- Abatement of appeal
- Dismissal for default
- Restoration of appeal
- Limitation Act
- 1963
- Section 5
- Order 41 Rule 19 CPC
