JUDGMENT
C. K. Mahajan, J.
1. These are the applications filed on behalf
of the plaintiffs under Order 22 Rules 4 and 5 for
bringing the legal heirs of defendant No.1 on record
and to set aside the abatement, and under Section 5 of
the Limitation Act for condensation of delay in filing
I.A. 1197/2000.
2. Defendant No.1 expired on 11.2.1999.
Plaintiffs claim to have knowledge of the death on
23.9.1999 when the counsel for the defendants made a
statement in Court. The plaintiffs filed the
application under Order 22 Rule 4 CPC on 27.1.2000,
i.e., after a lapse of more than four months along
with an application under Section 5 of the Limitation
Act for condensation of delay in filing the application
under Order 22 Rule 4 CPC.
3. The applicant contends that due to lack of
communication, the information could not be passed on
to the plaintiff and application under Order 22 Rule 4
CPC could not be filed. It is also stated that on
25.1.2000 when the files were taken out for the next
day, i.e., 27.1.2000 this fact came tot he notice of
the counsel for the plaintiff and the application was
filed on 27.1.2000. In any case, plaintiff came to
know about the factum of death of defendant No.1 for
the first time on 25.01.2000.
4. Smt. Chander Kanta, the proposed legal heir
of defendant No.1 has filed her reply contesting the
application for condensation of delay. She has alleged
that defendant No.1 was residing in H-66, South Extn.
Part I while plaintiffs No.2 and 3 along with their
family members were living in H-68, South Extn. Part
I. Plaintiff No.3 (ii) who has filed affidavit in
support of the application has all along been living
and residing in the said house No. H-68, South Extn.
Part I. Both the houses, i.e., H-66 and H-68 are
opposite to each other. Families of plaintiffs No.2
and 3 and defendant No.1 were on visiting terms. All
the family members of plaintiffs No.2 and 3 including
plaintiff No. 3(ii) were fully aware that defendant
No.1 had died on 11.2.1999. The family members of
plaintiffs No.2 and 3 also offered condolences to Smt.
Chander Kanta on 12.2.1999. The applicants have
suppressed true facts. The statement in the Court on
23.9.1999 was made in the presence of counsel for the
applicant. It is also alleged that the applicant does
not disclose any cause muchless any sufficient cause
for delay in filing the application under Order 22
Rules 4 and 5 CPC.
5. In rejoinder, the plaintiffs have submitted
that the legal heirs of plaintiffs No.2 and 3
sometimes reside at H-68, South Extn. and sometime at
Lucknow. It is also contended that during the period
26.1.1999 till 1st week of March 1999, Smt. Meena
Jain and her mother-in-law were in Lucknow.
Consequently, there was no occasion for coming to know
about the death of defendant No.1. It has been denied
that the families of plaintiffs No.2 and 3 and
defendant No.1 are on visiting terms after the filing
of the present proceedings. All other allegations
made in the reply have been denied.
6. I have heard learned counsel for the
parties.
7. An application for bringing the legal heirs
of a deceased on record is to be made within 90 days
from the date of death of the deceased or from the
date of knowledge of death of the deceased. In the
present case, the defendant No.1 died on 11.2.1999
which according to the plaintiffs came to their notice
on 23.9.1999 when counsel for the defendant made a
statement in the Court. The plaintiffs filed the
present application under Order 22 Rule 4 on
27.1.2000, almost after more than four months after
the prescribed period of limitation along with an
application under Section 5 of the Limitation Act for
condensation of delay.
8. It is settled law that to obtain extension
of time by invoking the provisions of Section 5 of he
Limitation Act, the party seeking extension has to
satisfy the Court that there is sufficient cause for
not approaching the Court within the prescribed time.
Section 5 gives the Court a discretion which is to be
exercised upon established principles.
9. A plethora of decisions lay down that the
expression ‘sufficient cause’ is to be liberally
construed so as to advance substantial justice when no
negligence or inaction or bonafides is imputable to
the parties. It is adequately elastic to enable the
Court to apply the law in a meaningful manner which
subserves the ends of justice. It does not mean that
every cause pleaded by the party has to be accepted
where the party is negligent and has slept over its
rights for over a year. The Court must not exercise
discretion in such cases.
10. In Collector, Land Acquisition, Anantnag and
Anr. v. Mst. Katiji and Ors. ,
their lordships of the Supreme Court have held that a
justice-oriented approach has to be adopted while
dealing with an application under Section 5 of the
Limitation Act and that “every day’s delay must be
explained” does not mean that technical approach
should be made.
11. Negligence of the counsel may be accepted by
the Court as a justification in extending time unless
the error of the counsel was tainted by any mala fide
motive though the mistake of counsel cannot be treated
as sufficient ground to condone delay by way of a rule
of universal application. It is all a question of
determining the bona fides of the litigant.
12. Learned counsel for the defendant has placed
reliance on a judgment of the Full Bench of Gujarat
High Court in Municipal Corporation of Ahmedabad.
through the Municipal Commissioner v. Voltas Limited
and etc. etc. wherein it
was held as under:-
“The phrase ‘sufficient cause’ as
occurring in Section 5 of the Limitation
Act pertains to the establishment of the
appropriate facts before the Court to
which the Court can apply its mind and
arrive at a conclusion regarding the
sufficiency of the cause or otherwise. In
essence, therefore, the phrase ‘sufficient
cause’ is not a question of principle, but
is a question of fact. Hence, whether to
condone the delay or not depends upon the
facts and circumstances of each case as
sufficient cause’ for condensation of
delay depends only on the facts placed by
the applicants before the Court. The
principle in law only is that the Courts
are required to take a liberal view while
considering the facts constituting the
sufficiency of the cause, on the basis of
which condensation of delay is sought.
This does not necessarily amount to saying
that all applications for condensation must
be granted. This is necessarily within
the discretionary jurisdiction of the
Court, and the Court deciding the
application for condensation would
necessarily exercise its discretion
judicially in the light of the
well-established principles, as regard the
appreciation of the relevant facts.”
13. In Smt. Tara Wanti v. State of Haryana
through the Collector, Kurukshetra , it was observed as under:-
“To attract the provisions of Section 5 of
the Limitation Act a Suitor is under an
obligation to show that he had sufficient
cause for not preferring the appeal or
making application within the period of
limitation prescribed under the Act or
under any other statute governing the
filing of the appeals or applications.
Even though normally the grounds of
sufficient causes have been spelt out by
various pronouncements of different High
Courts and the Apex Court yet no ground
can be held to be generally applicable
without exception. The question of
existence of sufficient cause is to be
decided on the basis of the facts and
circumstances of each particular case.
Sufficient cause within the meaning of the
Section must be a cause which is beyond
the control of the party invoking the aid
of the Section and the test to be applied
would be to see as to whether it was a
bona fide cause, inasmuch as nothing could
be considered to be bona fide which is not
done with due care and attention.
Precisely, the meaning of the word
sufficient cause and its scope should not
be crystallised by any rigid definition.”
14. Reliance has also been placed on a judgment
of the Supreme Court in Calcutta Municipal Corporation
v. Pawan Kumar Saraf and Anr. wherein D.P. Wadhwa, J., while dissenting,
held that:-
“Liberal all right, but delay is
inexcusable unless sufficient cause is
show. it is not the law that when an
application seeking condensation of delay
is filed by the State or any authority,
this Court must invariably condone the
delay irrespective whether sufficient
cause is shown or not.”
15. Now coming back to the present, case, the
plaintiffs in para 5 of their application have
submitted as under:-
“That on 23.9.1999, when the matter was
listed before this Hon’ble Court, the
associate of the counsel for the plaintiff
Shri Ashwini Sood appeared and during the
proceedings he came to know that defendant
No.1 had expired. However, the date of
death was not disclosed. Though, nothing
to this effect was made on the file,
however, the information could not be
passed on to the plaintiff. During this
period due to lack of communication also,
proper application could not be moved and
delay has occurred in the above
circumstances which is bona fide as it is
only on 25.1.2000 when the files were
taken out for the next day, i.e.,
27.1.2000 this fact came to the notice of
the counsel for the plaintiff. In any
case, the plaintiff remained altogether
ignorant about the death of defendant No.1
and has virtually come to know about the
factum of death of defendant No.1 for the
first time on 25.1.2000…”
16. One thing is clear that the counsel for the
plaintiffs came to know about the death of defendant
No.1 on 23.9.1999 when a statement to this effect was
made in Court. Yet no steps were taken. Plaintiffs
claim lack of communication on the part of the
associate counsel who appeared in the matter.
However, no affidavit of the associate counsel, Mr.
Ashwini Sood, has been filed to support the above
contention.
17. It is relevant to note that the plaintiffs
have admitted that they and the defendants are
neighbours living in houses which are opposite to each
other. The parties were on visiting terms prior to
the institution of the suit. Therefore, it is highly
improbable that the plaintiffs did not have knowledge
of the death of defendant No.1.
18. There is no material on record to show that
Manish Jain and Meena Jain were residents of Lucknow.
There is also no material placed on record to support
the contention that during the period 26.1.1999 till
1st week of March 1999, Smt. Meena Jain and her
mother-in-law were in Lucknow. Therefore, this plea
of the plaintiffs is also liable to be rejected.
Moreover, the affidavits of Smt. Meena Jain and Shri
Manish Jain in support of various applications mention
the South Extension address, which confirms the fact
that they reside in Delhi.
19. The mother-in-law of Smt. Meena Jain who
has filed an affidavit in support of the application
for condensation of delay and the mother of plaintiffs
No.2 and 3 along with their daughter had called on
Smt. Chander Kanta on 12.2.1999 and offered
condolences on the death of defendant No.1. The
plaintiffs have merely denied the same in their
rejoinder. I have no reason to disbelieve the
averments made in the affidavit in light of the fact
that the parties were living opposite to each other
and were on visiting terms.
20. There was total inaction, gross negligence
and lack of bona fides on the part of the applicant
for taking steps for bringing the legal heirs on
record. The explanation offered is not cogent. A
valuable right has accrued in favor of the legal
heirs of defendant No.1. Equities are not in favor
of the applicant. A litigant is required to be
vigilant. The applicant did not proceed with due
diligence and has failed to disclose sufficient cause
to warrant exercise of discretion by this Court.
21. Having regard to the facts and circumstances
of the case and in light of the aforesaid discussion,
the application being I.A. 1198/2000 under Section 5
of the Limitation Act is dismissed. Accordingly, the
application being I.A. 1197/2000 under Order 22 Rule
4 CPC is also dismissed.