TMI Blog2009 (4) TMI 904X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of the appellant herein to condone the delay of 2381 days and 2601 days respectively in bring on records, the legal heirs and representatives of two respondents therein being respondents No.2 and 3 holding that the second appeal preferred by them must be dismissed having abated, since cause of action therefor was indivisible. 3. Before adverting to the question involved, we may notice the fact of the matter. The parties hereto are neighbours. The dispute between them arose in relation to user of a lane. Appellants claim that they were entitled to use the passage in exercise of their right of easement. They purchased some property including the 1/12th right of the vendors in the disputed suit land on or about 6.11.1985. Prior thereto, they were said to have been enjoying an easmentary right thereover. 4. Respondent filed a suit in the Court of Principal District Munsif, Ramachandrapuram on or about 27.12.1985 praying, inter alia, for a decree for grant of mandatory injunction as also a decree for permanent injunction against the appellants restraining them from using the land in dispute. The said suit was dismissed by the learned Trial Judge by a judgment and decree d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iberal view in the matter of condonation of delay should be taken. 8. Mr. T.V. Ratnam, learned counsel appearing on behalf of the respondents, on the other hand, would urge : (i) The parties having been living in a village and that too being neighbours, it is idle to contend that they were not aware of the dates of death of the original respondent Nos. 2 and 3. (ii) As limitation for filing application for setting aside the abatement of the proceedings runs from the date of death and not from the date of knowledge thereabout, the High Court must be held to have correctly determined the issue before it. 9. Before adverting to the rival contentions of the parties, as noticed hereinbefore, we may notice the relevant provisions of the Code of Civil Procedure. Order XXII of the Code provides for the consequences arising out of death, marriage and insolvency of parties. Rule 1 thereof provides that the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives. Rule 2 lays down the procedure where one of several plaintiffs died and the right to sue survives. Order XXII Rule 3 lays down the procedure in case of death of one of the se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... houses. It is, therefore, difficult for us to appreciate that the appellant was not aware of the dates of death of respondent Nos.2 and 3. It may be true that a distinction exists where an application for setting aside of the abatement is filed in a suit and the one which is required to be filed in a second appeal before the High Court but the same, in our opinion, by itself may not be sufficient to arrive at a conclusion that the parties were not aware of the consequences thereof. Appellants themselves rely on the provisions of Order XXII Rule 10A of the Code of Civil Procedure, which was inserted by reason of Code of Civil Procedure (Amendment) Act, 1976. It does not, however, provide for consequences. It does not take away the duty on the part of the plaintiff or the appellant, as the case may be, to file an application for condonation of delay in bringing on record the heirs and legal representatives of a deceased plaintiff/appellant or defendant/respondent within the period prescribed. In Union of India v. Ram Charan Ors. [(1964) 3 SCR 467], a Three Judge Bench of this Court, held : Of course, the Court, in considering whether the appellant has established suffi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he legislature might have expected that ordinarily the interval between two successive hearings of a suit will be much within three months and the absence of any defendant within that period at a certain hearing may be accounted by his counsel or some relation to be due to his death or may make the plaintiff inquisitive about the reasons for the other party's absence. The legislature further seems to have taken into account that there may be cases where the plaintiff may not know of the death of the defendant as ordinarily expected and, therefore, not only provided a further period of two months under art. 176 for an application to set aside the abatement of the suit but also made the provisions of s. 5 of the Limitation Act applicable to such applications. Thus the plaintiff is allowed sufficient time to make an application to set aside the abatement which, if exceeding five months, be considered justified by the Court in the proved circumstances of the case. It would be futile to lay down precisely as to what considerations would constitute 'sufficient cause' for setting aside the abatement or for the plaintiff's not applying to bring the legal representatives of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orrectness by the court in each case. We however may not be understood to lay down a law that the same principle would apply in case of construction of section 3 of the limitation Act. It was furthermore observed : 15. The provisions of statute of limitation cannot be construed in a pedantic manner. This is now well known principle of law. Had the appeal been dismissed on merit, indisputably the period of limitation would have started from the date of dismissal of the second appeal. The respondents themselves preferred an appeal. The appeal was a continuation of a suit. The appellants herein could not thus, have been held to be aware of the fact that during the pendancy thereon Bansi would die or the appeal shall abate. Let us consider a hypothetical situation. An appeal abates after three years of the judgment and decree passed by the first appellate court and in that situation the appellant would have no chance to reap the benefit thereof, if the submission of the learned counsel appearing on behalf of the respondent is accepted. The law in our opinion, cannot be construed in a manner which would defeat the ends of justice Reliance has also been placed on a recent dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ending appeal more leniently than delays in the institution of an appeal. The courts view applications relating to lawyer's lapses more leniently than applications relating to litigant's lapses. The classic example is the difference in approach of courts to applications for condonation of delay in filing an appeal and applications for condonation of delay in refiling the appeal after rectification of defects. (v) Want of `diligence' or `inaction' can be attributed to an appellant only when something required to be done by him, is not done. When nothing is required to be done, courts do not expect the appellant to be diligent. Where an appeal is admitted by the High Court and is not expected to be listed for final hearing for a few years, an appellant is not expected to visit the court or his lawyer every few weeks to ascertain the position nor keep checking whether the contesting respondent is alive. He merely awaits the call or information from his counsel about the listing of the appeal. Having said so, the learned Judge referred to some factors which would have a bearing for the purpose of determining sufficient cause , in particular, where a regular suit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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