TMI Blog2002 (2) TMI 1280X X X X Extracts X X X X X X X X Extracts X X X X ..... inath 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. The short facts are that when First Appeal No. 307 of 1989(R) was listed for hearing, 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 Vakalatnama, the client came back on 20th September, 1998 and thereafter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i 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. 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 different families, different villages withi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... served that 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). In the case of Rama Ravalu Gavade v.Sataba Gavadu Gavade (dead) through LRs. and another (1997) 1 Supreme Court Cases 261, 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 st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ult 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 a 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 untrammeled 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 lim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 bona 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, causi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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