MANU/SC/0135/2002

Equivalent/Neutral Citation: AIR2002SC 1201, 2002(2)ALLMR(SC )588, 2002 (48) ALR 101, 2002(1)ARC 479, 2002(3)BLJ231, 2002(1)BLJR794,
2002 (1) C C C 242 , (2002)3C ompLJ274(SC ), [2006(1)JC R93(SC )], JT2002(2)SC 349, 2002-3-LW417, (2002)2MLJ85(SC ), 2002(3)PLJR247,
2002(2)RC R(C ivil)337, 2002 93 RD556, 2002(2)SC ALE334, (2002)3SC C 195, [2002]2SC R77, 2002(1)UC 718

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1704 of 2002
Decided On: 27.02.2002
Appellants: Ram Nath Sao and Ors.
Vs.
Respondent: Gobardhan Sao and Ors.
Hon'ble Judges/Coram:
M.B. Shah and B.N. Agrawal, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Gaurav Agrawal and Prashant Kumar, Advs
For Respondents/Defendant: A. Sharan, Sr. Adv., Sujit Kumar Singh and S.B. Upadhyay,
Advs. and Chander Shekhar Ashri, Adv. (NP)
Case Note:
Civil - Partition suit decreed by trial court - Four appellant died during the
pendency of 1st appeal before High Court - Abatement of suit for failure to
bring legal representatives on record - Refusal to condone delay or to set
aside abatement - Appellants were rustic villagers and illiterate - Expression
"sufficient cause" should receive a liberal construction so as to advance
substantial justice when no negligence or inaction or want of bonafide is
imputable to a party - Order 22 rule 9 of the CPC- Section 5 of the Limitation
Act, 1963.
JUDGMENT
B.N. Agrawal, J.
1. Leave granted.
2. Order impugned in this appeal has been passed by a Division Bench of the Jharkhand
High Court in Letters Patent Appeal upholding order passed by learned Single Judge
whereby regular First Appeal filed by the defendants against decree passed in a partition
suit involving approximately 116 acres of land allowing claim of the plaintiffs has been
disposed of holding that the entire appeal has become incompetent as during the
pendency of the appeal, appellant No. 2-Kashinath Sao(defendant No. 2), appellant No.
3-Buchua Devi (defendant No. 3), appellant No. 22-Guru Dayal Sao(defendant No. 19)
and appellant No. 41-Ugni Devi(defendant No. 35) expired and as no steps for
substitution of their heirs and legal representatives were taken within the time
prescribed, the same abated and application for substitution of their heirs after setting
aside abatement and condonation of delay was rejected after recording finding that no
sufficient cause was shown either for condonation of delay or setting aside abatement.
3. The short facts are that when First Appeal No. 307 of 1989(R) was listed for hearing,

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appellants' counsel wrote a letter intimating the client about listing of the matter
whereupon one of the appellants in the appeal came on 18th September, 1998, met his
counsel and during the course of discussion, it transpired that appellant Nos. 2, 3, 22
and 41 had already expired whereupon the counsel instructed the client to go to the
village and bring the Vakalatnama from the heirs and legal representatives of the
deceased persons for filing substitution application. After obtaining the Vekalatnama,
the client came back on 20th September, 1998 and thereafter on 24th September, 1998,
substitution application was filed making a prayer therein for expunging the name of
appellant No. 2 and making a note that he died on 10th April, 1997 leaving behind
appellant Nos. 5, 9 and 10 as his heirs and legal representatives who were already on
the record, besides a daughter Sheela Devi for whom prayer was made for bringing her
on the record in place of the deceased appellant as it is well settled that in such an
eventuality, left out heirs can be brought on the record at any time irrespective of the
period of limitation. Further prayer was made in that application for substitution of the
heirs and legal representatives named therein of appellant Nos. 3, 22 and 41 after
condonation of delay in filing the application for setting aside abatement and setting
aside abatement. Appellant No. 3 died on 19th December, 1997, No. 22 died in the
month of February, 1993 and No. 41 died in the year 1995. In the said appeal, there
were 41 appellants belonging to different families, villages and police stations. Some of
the appellants who were contesting defendants were members of joint family of the
plaintiffs and the contesting defendants whereas others were transferees. As some of
the heirs of appellant No. 2 were already on the record, his appeal did not abate and
prayer for bringing on record one left out heir was made for which there is no period of
limitation. So far appellant No. 3 is concerned, there wad delay of 130 days in filing the
application for substitution. However, in relation to appellant No. 22, the delay was
about five years and in relation to appellant No. 41, the delay was about three years,
both the whom were transferees and belonged to villages different than the village and
police station in which members of joint family of the plaintiffs and contesting
defendants resided. The appellants before the High Court were rustic and illiterate
villagers and undisputedly no sooner their lawyer advised, steps were taken with utmost
expedition without any loss of time.
4. In the said appeal on behalf of the respondents, a counter affidavit was filed to the
aforesaid petition for substitution in which it was not averred that the delay was mala
fide, dilatory and/or intentional. Further, there was no denial that all the appellants
were rustic villagers and except appellant No. 6, all were illiterate.
5. A learned Single Judge of Ranchi Bench of the Patna High Court as it then existed, by
order dated 18th November, 1998 directed for expunging name of appellant No. 2 from
the record, making a note that appellant Nos. 5, 9 and 10 were already on the record as
his heirs and legal representatives and impleading the daughter who was not on the
record. So far the prayer for substitution of the heirs of appellant Nos. 3, 22 and 41 is
concerned, the same was refused as it was held that no sufficient cause was shown for
condonation of delay in filing the application to set aside abatement and setting aside
abatement. Against the said order, the appellants preferred a Letters Patent Appeal
before the Jharkhand High Court which was created by then, and the said appeal was
dismissed on 11th January, 2001. Hence, this appeal by special leave.
6 . Shri Gaurav Agrawal, learned counsel appearing on behalf of the appellants, who
was thoroughly ready both on facts as well as law, found out all the relevant decisions
on the point in issue and by placing the same with fairness, submitted in support of this
appeal that as the appellants, who were rustic and illiterate villagers, belonged to

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different families, different villages within different police stations and in the absence of
anything to show that the delay was mala fide, intentional or any dilatory tactics was
adopted, the same should have been condoned and abatement set aside as the
expression 'sufficient cause' should receive a liberal construction so as to advance
substantial justice when no negligence or inaction or want of bona fide is imputable to a
party. On the other hand, Shri Amarendra Sharan, learned Senior Counsel appearing on
behalf of the respondents, with his usual vehemence, submitted that the High Court was
quite justified in holding that no sufficient cause was made out for condonation of delay
and setting aside abatement and accordingly no interference with the impugned order is
called for in the exercise of discretionary powers of this Court under Article 136 of the
Constitution of India.
7 . The expression 'sufficient cause' within the meaning of Section 5 of the Limitation
Act, 1963 (hereinafter referred to as 'the Act'), Order 22 Rule 9 of the Code of Civil
Procedure (hereinafter referred to as 'the Code") as well as similar other provisions and
the ambit of exercise of powers thereunder have been subject matter of consideration
before this Court on numerous occasions. In the case of The State of West Bengal v.
The Administrator, Howrah Municipality and Ors. MANU/SC/0534/1971 :
[1972]2SCR874a , while considering scope of the expression 'sufficient cause' within
the meaning of Section 5 of the Act, this Court laid down that the said expression
should receive a liberal construction so as to advance substantial justice when no
negligence or inaction or want of bona fide is imputable to a party.
8. In the case of Sital Prasad Saxena (dead) by Lrs. v. Union of India and Ors.
MANU/SC/0294/1984 : [1985]1SCR659 , the Court was dealing with a case where in a
second appeal, appellant died and application for substitution after condonation of delay
and setting aside abatement filed after two years by the heirs and legal representatives
was rejected on the ground that no sufficient cause was shown and the appeal was held
to have abated. When the matter was brought to this Court, the appeal was allowed,
delay in filing the petition for setting aside the abatement was condoned, abatement
was set aside, prayer for substitution was granted and High Court was directed to
dispose of the appeal on merits and while doing so, it was observed the once an appeal
is pending in the High Court, the heirs are not expected to keep a constant watch on the
continued existence of parties to the appeal before the High Court which has a seat far
away from where parties in rural areas may be residing inasmuch as in a traditional
rural family the father may not have informed his son about the litigation in which he
was involved and was a party. It was further observed that Courts should recall that
"what has been said umpteen times that rules of procedure are designed to advance
justice and should be so interpreted and not to make them penal statutes for punishing
erring parties." (Emphasis added).
9. In the case of Ram Ravalu Gavade v. Sataba Gavadu Gavade (dead) through
LRs. and Ors. MANU/SC/1000/1997 : (1997)1SCC261 , during the pendency of the
appeal, one of the parties died. In that case, the High Court had refused to condone the
delay in making an application for setting aside abatement and set aside abatement, but
this Court condoned the delay, set aside abatement and directed the appellate court to
dispose of appeal on merit observing that the High Court was not right in refusing to
condone the delay as necessary steps could not be taken within the time prescribed on
account of the fact that the appellant was an illiterate farmer.
1 0 . In the case of N. Balakrishnan v. M. Krishnamurthy MANU/SC/0573/1998 :
2008(228)ELT162(SC) , there was a delay of 883 days in filing application for setting
aside ex parte decree for which application for condonation of delay was filed. The trial

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court having found that sufficient cause was made out for condonation of delay,
condoned the delay but when the matter was taken to the High Court of Judicature at
Madras in a revision application under Section 115 of the Code, it was observed that the
delay of 883 days in filing the application was not properly explained and it was held
that the trial court was not justified in condoning the delay resulting into reversal of its
order whereupon this Court was successfully moved which was of the view that the High
Court was not justified in interfering with order passed by trial court whereby delay in
filing the application for setting aside ex parte decree was condoned and accordingly
order of the High court was set aside. K.T. Thomas, J., speaking for the Court succinctly
laid down the law observing thus in paras 8, 9 and 10:
"8. The appellant's conduct does not on the whole warrant to castigate him as
an irresponsible litigant. What he did in defending the suit was not very much
far from what a litigant would broadly do. Of course, it may be said that he
should have been more vigilant by visiting his advocate at short intervals to
check up the progress of the litigation. But during these days when everybody
is fully occupied wit his own avocation of life an omission to adopt such extra
vigilance need not be used as a ground to depict him as a litigant not aware of
his responsibilities, and to visit him with drastic consequences.
9 . It is axiomatic that condonation of delay is a matter of discretion of the
court. Section 5 of the Limitation Act does not say that such discretion can be
exercised only if the delay is within a certain limit. Length of delay is no matter,
acceptability of the explanation is the only criterion. Sometimes delay of the
shortest range may be uncontainable due to a want of acceptable explanation
whereas in certain other cases, delay of a very long range can be condoned as
the explanation thereof is satisfactory. Once the court accepts the explanation
as sufficient, it is the result of positive exercise of discretion and normally the
superior court should not disturb such finding, much less in revisional
jurisdiction, unless the exercise of discretion was on wholly untenable grounds
or arbitrary or perverse. But it is different matter when the first court refuses to
condone the delay. In such cases, the superior court would be free to consider
the cause shown for the delay afresh and it is open to such superior court to
come to its own finding even untrammelled by the conclusion of the lower
court.
10. .....
The primary function of a court is to adjudicate the dispute between the parties
and to advance substantial justice. The time-limit fixed for approaching the
court in different situations is not because on the expiry of such time a bad
cause would transform into a good cause."
[Emphasis added]
The Court further observed in paragraphs 11, 12 and 13 which run thus:-
"11. Rules of limitation are not meant to destroy the rights of parties. They are
meant to see that parties do not resort to dilatory tactics, but seek their remedy
promptly. The object of providing a legal remedy is to repair the damage
caused by reason of legal injury. The law of limitation fixes a lifespan for such
legal remedy for the redress of the legal injury so suffered. Time is precious
and wasted time would never revisit. During the efflux of time, newer causes
would sprout up necessitating newer persons to seek legal remedy by

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 approaching the courts. So a lifespan must be fixed for each remedy. Unending
period for launching the remedy may lead to unending uncertainty and
consequential anarchy. The law of limitation is thus founded on public policy. It
is enshrined in the maxim interest republic up sit finis lithium (it is for the
general welfare that a period be put to litigation. Rules of limitation are not
meant to destroy the rights of the parties. They are meant to see that parties do
not resort to dilatory tactics but seek their remedy promptly. The idea is that
every legal remedy must be kept alive for a legislatively fixed period of time.
12. A court knows that refusal to condone delay would result in foreclosing a
suitor from putting forth his cause. There is no presumption that delay in
approaching the court is always deliberate. This Court has held that the words
"sufficient cause" under Section 5 of the Limitation Act should receive a liberal
construction so as to advance substantial justice vide Shakuntala Devi Jain v.
Kuntal Kumari MANU/SC/0335/1968 : [1969]1SCR1006and State of W.B. v.
Administrator, Howrah Municipality MANU/SC/0534/1971 : [1972]2SCR874a .
13. It must be remembered that in every case of delay, there can be some
lapse on the part of the litigant concerned. That alone is not enough to turn
down his plea and to shut the door against him. If the explanation does not
smack of mala fides or it is not put forth as part of a dilatory strategy, the court
must show almost consideration to the suitor. But when there is reasonable
ground to think that the delay was occasioned by the party deliberately to gain
time, then the court should lean against acceptance of the explanation. While
condoning the delay, the court should not forget the opposite party altogether.
It must be borne in mind that he is a loser and he too would have incurred
quite large litigation expenses."
[Emphasis added]
11. Thus it becomes plain that the expression "sufficient cause" within the meaning of
Section 5 of the Act or Order 22 Rule 9 of the code or any other similar provision
should receive a liberal construction so as to advance substantial justice when no
negligence or inaction or want of bona fide is imputable to a party. In a particular case
whether explanation furnished would constitute "sufficient cause" or not will be
dependant upon facts of each case. There cannot be a straitjacket formula for accepting
or rejecting explanation furnished for the delay caused in taking steps. But one thing is
clear that the courts should not proceed with the tendency of finding fault with the
cause shown and reject the petition by a slipshod order in over jubilation of disposal
drive. Acceptance of explanation furnished should be the rule and refusal an exception
more so when no negligence or inaction or want of bone fide can be imputed to the
defaulting party. On the other hand, while considering the matter the courts should not
lose sight of the fact that by not taking steps within the time prescribed a valuable right
has accrued to the other party which should not be lightly defeated by condoning delay
in a routine like manner. However, by taking a pedantic and hyper technical view of the
matter the explanation furnished should not be rejected when stakes are high and/or
arguable points of facts and law are involved in the case, causing enormous loss and
irreparable injury to the party against whom the list terminates either by default or
inaction and defeating valuable right of such a party to have the decision on merit.
While considering the matter, courts have to strike a balance between resultant effect of
the order it is going to pass upon the parties either way.
12. In view of the foregoing discussion, we are clearly of the opinion that on the facts
of present case, Division Bench of the High Court was not justified in upholding order

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passed by the learned Single Judge whereby prayers for condonation of delay and
setting aside abatement were refused and accordingly the delay in filing the petition for
setting are abatement is condoned, abatement is set aside and prayer for substitution is
granted.
13. In the result, the appeal is allowed, impugned orders passed by the High Court are
set aside and the matter is remitted back to the learned Single Judge for deciding the
First Appeal on merits in accordance with law. In the circumstances of the case, we
direct that the parties shall bear their own costs.

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