Case Note & Summary
The present judgment arises from a Second Appeal No. 17 of 2003 pending before the Gujarat High Court. The original appellant, Vira Meru Jotwa, had filed the appeal against the judgment and decree passed in Regular Civil Suit No. 102 of 1985, which was originally filed by respondent No.1, Ramshi Sidi Gadhe, seeking declaration of right of way and permanent injunction regarding easementary rights over Survey Nos. 10 and 3 of the appellant. During the pendency of the Second Appeal, the original appellant died on 15.10.2006. His legal heirs, being his widow and sons, filed Civil Application No. 1 of 2023 for bringing them on record, along with Civil Application No. 1 of 2024 for condonation of delay of 6110 days in filing the application for setting aside abatement and for joining legal heirs. The delay occurred because the legal heirs were not aware of the pending litigation until they were contacted by the appellant's advocate in 2022. The respondent No.1 opposed the condonation, arguing that the delay was inordinate and unexplained. The court, after hearing both sides, examined the principles governing condonation of delay under Section 5 of the Limitation Act, 1963. It noted that the term 'sufficient cause' should be interpreted liberally to advance substantial justice, and that the death of the appellant and the subsequent steps taken by the heirs to continue the litigation constituted sufficient cause. The court also considered that the Second Appeal was of 2003 and the suit was of 1985, and that the respondent had already enjoyed the fruits of the decree. However, to balance the equities, the court imposed costs of Rs. 5,000/- on the applicants. The delay was condoned, the abatement was set aside, and the legal heirs were brought on record. The court directed that the Second Appeal be listed for hearing on merits.
Headnote
A) Limitation Act - Condonation of Delay - Section 5 - Sufficient Cause - The court considered whether a delay of 6110 days in filing an application to set aside abatement and bring legal heirs on record should be condoned. The court held that the term 'sufficient cause' should be liberally construed to advance substantial justice, and that the death of the original appellant and the continuous litigation by the heirs constituted sufficient cause. The delay was condoned subject to costs of Rs. 5,000/-. (Paras 1-24)
Issue of Consideration
Whether the delay of 6110 days in filing the application for setting aside abatement and bringing legal heirs of the deceased appellant on record should be condoned under Section 5 of the Limitation Act, 1963.
Final Decision
The court allowed the Civil Application for condonation of delay, condoned the delay of 6110 days, set aside the abatement, and brought the legal heirs on record, subject to payment of costs of Rs. 5,000/- to the respondent No.1.
Law Points
- Condonation of delay
- Sufficient cause
- Liberal approach
- Limitation Act
- 1963 Section 5
- Abatement
- Setting aside abatement
- Bringing legal heirs on record
Case Details
R/SECOND APPEAL NO. 17 of 2003
MR PJ KANABAR for the Appellant(s) No. 1, MR ASHISH M DAGLI for the Respondent(s) No. 1
Vira Meru Jotwa (original appellant, now deceased); legal heirs: Not mentioned
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Nature of Litigation
Civil Second Appeal arising from a suit for declaration of right of way and permanent injunction regarding easementary rights.
Remedy Sought
The legal heirs of the deceased appellant sought condonation of delay of 6110 days in filing application to set aside abatement and to bring them on record as legal representatives.
Filing Reason
The original appellant died on 15.10.2006, and the legal heirs were unaware of the pending litigation until contacted by the advocate in 2022.
Previous Decisions
The trial court decreed the suit in favor of respondent No.1; the first appeal was dismissed; hence the Second Appeal was filed.
Issues
Whether the delay of 6110 days in filing the application for setting aside abatement and bringing legal heirs on record should be condoned under Section 5 of the Limitation Act, 1963.
Submissions/Arguments
The applicants (legal heirs) submitted that the original appellant died on 15.10.2006, and they were not aware of the pending litigation until the advocate contacted them in 2022. They acted diligently thereafter.
The respondent No.1 opposed the condonation, arguing that the delay was inordinate and unexplained, and that the applicants failed to show sufficient cause.
Ratio Decidendi
The term 'sufficient cause' under Section 5 of the Limitation Act, 1963 should be liberally construed to advance substantial justice. The death of the appellant and the subsequent steps taken by the legal heirs to continue the litigation constitute sufficient cause for condonation of delay.
Judgment Excerpts
By way of this application filed under Section 5 of the Limitation Act, 1963 (hereinafter referred to as ‘the Act’), the heirs and legal representatives of the original plaintiff prayed for the following reliefs:-
The facts of the case in a nutshell are as under:-
That the respondent No.1 herein filed a Regular Civil Suit No. 102 of 1985 in the Court of Civil Judge (Junior Division) Kodinar against the present appellant and respondent No.2 herein for declaration of right of way in Survey Nos. 10 and 3 of the appellant to reach to the land Survey Nos. 11 and 4 of respondent No.1 and further the declaration to the effect that respondent No. 1 has right to carry water upto Survey No.11 of him through Survey No.10 of the appellant and upto Survey No.4 of him through Survey Nos. 10 and 3 of the appellant.
Procedural History
Regular Civil Suit No. 102 of 1985 was filed by respondent No.1 against the appellant and respondent No.2 for declaration of easementary rights. The suit was decreed. The appellant filed first appeal which was dismissed. Thereafter, the appellant filed Second Appeal No. 17 of 2003 before the Gujarat High Court. During the pendency of the Second Appeal, the original appellant died on 15.10.2006. The legal heirs filed Civil Application No. 1 of 2023 for bringing them on record and Civil Application No. 1 of 2024 for condonation of delay of 6110 days. The court allowed the condonation and set aside abatement.
Acts & Sections
- Limitation Act, 1963: Section 5
