Holding

The Supreme Court set aside the abatement, condoned the delay, and permitted the legal representatives of the deceased respondent to be brought on record.

Summary

The appellant, Perymon Bhagabathy (a devaswom), sought to set aside the abatement of a second appeal after the sole plaintiff, Bhargavi Amma, died during the pendency of the appeal. The High Court dismissed the appellant's applications to condone the delay, set aside the abatement, and bring the legal representatives of the deceased on record, holding that the 394‑day delay was not satisfactorily explained. The Supreme Court examined the provisions of Order 22 of the Code of Civil Procedure and Section 5 of the Limitation Act, emphasizing a liberal construction of "sufficient cause" when the appellant was unaware of the death and no notice was given. It identified three conditions that favour condonation: death of the respondent while the appeal is pending without fixed hearing dates, no notice of death to the appellant, and the appellant's genuine ignorance of the death. Finding these conditions satisfied, the Court set aside the abatement, condoned the delay, and allowed the legal representatives to be brought on record, thereby allowing the appeal to proceed on its merits.

Issues considered

Whether the High Court was correct in refusing to condone the delay and set aside the abatement of the appeal.
Whether the appellant can be said to have been negligent or lacking diligence in bringing the legal representatives of the deceased respondent on record.
How "sufficient cause" under Section 5 of the Limitation Act and Order 22 CPC should be interpreted in cases of death of a party.
Whether the three conditions laid down by the Supreme Court for condoning delay and setting aside abatement are satisfied.

Legislation cited

Code of Civil Procedure, 1908s. Order 22 Rule 11, s. Order 22 Rule 1OA, s. Order 22 Rule 1OA (as amended), s. Order 22 Rule 4
Limitation Act, 1963s. Article 120, s. Article 121, s. Section 5

Subjects

abatementlimitationsufficient causeSection 5 Limitation ActOrder 22 CPClegal representativesdelay condonationcivil appealdeath of partysubstitution of legal heir

Judgment

'
~

[2008] 11 S.C.R. 1
)....

PERYMON BHAGBATHY A
v.
BHARGAVI AMMA (DEAD) BY LRS. AND ORS.
(Civil Appeal No. 4440 of 2008)
JULY 11, 2008
B
[R.V. RAVEENDRAN AND LOKESHWAR SINGH
PANTA, JJ]

Code of Civil Procedure, 1908:
c
Or. 22, rr. 4, 1OA and 11 - Application for setting aside
abatement of second appeal - Delay in filing - 'Sufficient
cause' with respect to delay- Sole plaintiff (respondent no. 2
in second appeal) died on 17. 4. 2002 - Applications for set-
ting aside abatement and substitution of legal heirs filed on
9. 10. 2003 - Rejected by High Court- HELD: Lack of diligence D
or negligence can be attributed to an appellant only when he
is aware of the death and fails to take steps to bring the legal
representatives on record - In the instant case, second ap-
peal was admitted in 1993 but hearing of dates were not fixed
periodically - Neither counsel for deceased respondent in E
High Court nor her legal representatives reported her death
to the High Court - No notice of death given to appellant -
There is no material to contradict claim of appellant that it was
unaware of death of the respondent- Delay condoned -Abate-
ment set aside - Legal representatives of deceased respon- F
..I
dent permitted to be brought on record - Principles applicable
in considering applications for setting aside abatement sum-
marized a.s follows:
(i) The words "sufficient cause for not making the
application within the period of limitation" should be un- G
derstood and applied in a reasonable, pragmatic, practi-
cal and liberal manner, depending upon the facts and cir-
cumstances of the case, and the type of case. The words
'sufficient cause' in section 5 of Limitation Act should re-
1 H
i.-
I
2 ,..
SUPREME COURT REPORTS [2008] 11 S.C.R.
-i:

A ceive a liberal construction so as to advance substantial
justice, when the delay is not on account of any dilatory
tactics, want of bonafides, deliberate inaction or negli-
gence on the part of the appellant.
(ii) In considering the reasons for condonation of
B ,_
delay, the courts. are more liberal.with reference to _appli-
cations for setting aside abatement, than other cases.
While the court will have to keep in view that a valuable
right accrues to the legal representatives of the deceased
respondent when the appeal abates, it will not punish an
c appellant with foreclosure of the. appeal, for unintended
lapses.· The courts tend to set aside abatement and de-
cide the matter on merits,. ·rather than terminate the ap-
peal on the ground of abatement.

D (iii) The decisive factor in condonation of delay; is
not the length of delay, but sufficiency of a satisfactory
explanation. . · ·

(iv) The extent or degree of leniency to be shown by
a court. depends on the nature of application and facts
E and circumstances of the case. For example, courts view .
delays in making applications in a pending appeal more t
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
F 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
G 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 r-
an appeal is admitted by the· High Court and is not ex-
pected to be listed for final hearing for a few years, an
H appellant is not expected to visit the court or his lawyer

•
~
PERYMON BHAGBATHY v. BHARGAVI AMMA (DEAD) 3
BY LRS. & ORS.
)....

every few weeks to ascertain the position nor keep check- A
ing whether the contesting respondent is alive. He merely
awaits the call or information from his counsel about the
listing of the appeal. [para 8] [12-F,G,H, 13-A,B,C,D,E,F,G,H
14-A]
B
Shakuntala Devi Jain v. Kuntal Kumari AIR 1969 SC 575;
N.Bafakrishnan v. M.Krishnamurthy 1998 (7) SCC 123;Union
of India vs. Ram Charan (Deceased) by LRs. AIR 1964 SC
215; Ram Nath Sao vs. Gobardhan Sao 2002 (3) SCC 195;
Sita! Prasad Saxena (dead) by LRs. v. Union of India & Ors.
1985 (1) SCC 163; and State of Madhya Pradesh vs. S. S.
c
Akolkar -1996 (2) SCC 568 - relied on.
Krishna vs. Chathappan 1890ILR13 Mad 269- referred to.
lffollowing three conditions exist, the courts will usu-
ally condone the delay and set aside the abatement (even D
though the period of delay is considerable and a valu-
able right might have accrued to the opposite party-LRs
of the deceased - on account of the abatement):
(i) The respondent died during the period when the E
'\
appeal was pending without any hearing dates being
fixed;
(ii) Neither the counsel for the deceased respondent
nor the legal representatives of the deceased respondent
reported the death of the respondent to the court and the F
..... court has not given notice of such death to the appellant.
(iii) The appellant avers that he was unaware of the
death of the respondent and there is no material to doubt
or contradict his claim. [para 13] [16-A,B,C,D]
G
Limitation Act, 1963:
s. 5 and Schedule, Article 120 and 121 - Condonation
4
of delay in filing application for setting aside abatement -
Factors to be considered - Explained - Code of Civil Proce-
du re, 1908 - Or. 22, rr. 4, 1OA and 11. H
4 SUPREME COURT REPORTS [2008] 11 S.C.R.

A Words and Phrases:
'Sufficient cause' - Connotation of in the context of s. 5 of
Limitation Act.
Case law reference
B
Shakuntala Devi Jain v. Kuntal Kumari AIR 1969 SC 575 .1-

- relied on (para 6)
Krishna vs. Chathappan 1890 ILR 13 Mad 269 - referred
to (para 6)
c N.Balakrishnan v. M.Krishnamurthy 1998 (7) SCC 123
- relied on (para 6)
Union of India vs. Ram Charan (Deceased) by LRs. AIR
1964 SC 215 - relied on (para 7)
D Ram Nath Sao vs. Gobardhan Sao 2002 (3) SCC 195--
relied on (para 6)
Sita/ Prasad Saxena (dead) by LRs. v. Union of India &
Ors. 1985 (1) SCC 163- relied on (para 6)
E State of Madhya Pradesh vs. S. S. Akolkar 1996 (2) SCC
568 - relied on (para 6)
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 4440
of 2008
F From the final Judgment and Order dated 5.10.2005 of
the High Court of Kerala at Ernakulam in Second Appeal No.
147/1993-A& I.A. No. 1011/03 in S.A. No.147/1993-A& 1013/
03 in S.A. No. 147/1993-A & C.M. Appn. 332/03 in Second
Appeal No. 147/1993-A
G K.V. Vishwanathan, Anil Kaushik, Gopal Singh and T. Raja
for the Appellant.
'r
P. Krishnamoorthy, Malini Poduval for the Respondents.
The Order of the Court was delivered by
H
PERYMON BHAGBATHY v. BHARGAVI AMMA (DEAD) 5
BY LRS. & ORS. [R.V.RAVEENDRAN, J.]

R.V.RAVEENDRAN, J. 1. Leave granted. A
2. This appeal is by the appellant in Second Appeal
No.147 of 1993 on the file of the High Court of Kerala. During
the pendency of the said appeal, the second respondent be-
fore the High Court, died on 17.4.2002. In that behalf, the ap-
8
pellant filed the following three applications on 9.10.2003 : (i)
an application to set aside the abatement of the appeal against
second respondent in the second appeal; (ii) an application to
condone the delay in filing the said application to set aside the
abatement; and (iii) an application to bring on record, the LRs C
of the deceased second respondent in the second appeal. The
High Court, being of the view that the delay of 394 days was not
satisfactorily explained, dismissed the application for condo-
nation of delay as also the application for setting aside the abate-
ment and consequently, dismissed the application for bringing
the LRs on record, by three separate orders dated 5.10.2005. D
As the deceased second respondent in the second appeal was
the sole plaintiff in thF. original suit from which the second ap-
peal arose, the second appeal was closed on 5.10.2005, as
having abated. The said four orders are challenged in this ap-
peal by special leave. E
3. The appellant contends that there was no negligence or
laches on its part and it had satisfactqrily explained the rea-
sons for the delay which were due to circumstances beyond its
control. The appellant, a Devoswom managed by a Commit-
tee, gave the following explanation for the delay: When the sec- F
and appeal was filed in 1993, it was managed by an earlier
Managing Committee. Later in a suit relating to the manage-
ment of the Devoswom, the Sub-Court, Kallam appointed a
Receiver to manage the Devoswom. Thereafter elections were
held on 25.5.2003 and the newly elected Committee of Man- G
agement assumed office on 8.6.2003. The new Committee of
' Management was unaware of the pendency of the second
l --< appeal and, therefore, not in a position to file necessary
applications in time. The Committee came to know about the
appeal only when it received a communication dated 7.9.2003 H
6 SUPREME COURT REPORTS- [2008] 11 S.C.R
~
A from the lawyer about the case. Thereafter .it ·ascertained the
particulars of the LRs. of the deceased and filed the applica-
tions on 9.10.2003.
4. The question that therefore arises for our consideration
is whether· the High Court ought to have condoned the delay
B
and set aside the abatement. To consider this question, it is ....
necessary to refer to the relevant provisions of order 22 CPC
and their scope.
4.1) Order 22 Rule 11 CPC provides that in the applica-
c tion of Order22 to appeals, as far as may be the words 'plain-
tiff', 'defendant' and 'suit' shall respectively include an appel-
lant, a respondent and an appeal. Rule 1 of Order 22 provides
that the death of a respondent shall not cause the appeal to
abate if the right to sue survives.
D 4.2) Rule 4 of Order 22 prescribes the procedure in case
of death of a respondent. Sub-Rule (1) of Rule 4 provides that
where a respondent dies and the right to sue does not survive
against the surviving respondents alone or where the sole re-
spondent dies and the right to sue survives, the court on an ap-
E plication made in that behalf, shall cause the legal representa-
tive of the deceased respondent to be made a party to the ap-
peal and shall proceed with the appeal: Sub-rule (3) provides ,~

that where no application is made to cause the legal represen- •
tative of the deceased respondent to be niade party, the ap-
F peal shall abate as against the deceased respondent. (The
word 'abate' in the context of Order 22 CPC means termination -~
of the suit or appeal on account of the death of a party materi-
ally interested).
4.3) Under Article 120 of the Limitation Act, 1963, the pe-
G riod of limitation to have the legal representative of a deceased
respondent made a party to an appeal under the Code of Civil
Procedure, is 90 days from the date of death of the respondent.
Article 121 provides that for an application under the Code of
>-
Civil Procedure for an order to set aside abatement, the period
H of limitation is 60 days from the date of abatement. Section 5 of
PERYMON BHAGBATHY v. BHARGAVI AMMA (DEAD) 7
BY LRS. & ORS. [R.V.RAVEENDRAN, J.]

the Limitation Act provides that any application may be admit- A
ted after the prescribed period if the applicant satisfies the court
that he had sufficient cause for not making the application within
such period.
4.4) Sub-rule (5) of Rule 4 of Order 22 now gives a clear .
8
indication as to what will be sufficient cause. It provides that
where the appellant was ignorant of the death of a respondent,
and for that reason could not make an application for the sub-
stitution of the legal representative of the deceased respondent
under Rule 4 within the time specified in the Limitation Act, 1963, C
and in consequence, the appeal has abated, and the appellant
applies after the expiry of the period specified in the Limitation
Act for setting aside the abatement and also for the admission
of that application under section 5 of the Limitation Act, on the
ground that he had by reason of such ignorance, sufficient cause
for not making the application within the period specified in the D
Limitation Act, the court shall, in considering the application
under section 5 of the Limitation Act, have due regard to the
fact of such ignorance, if proved.
4.5) Rule 1OA of Order 22 provides that whenever a pleader E
appearing for a party to the suit comes to know of the death of
that party, he shall inform the court about it, and the court shall
thereupon give notice of such death to the other party.
5. Having regard to the wording of Rule 4, it is clear that
when a respondent dies and an application to bring his legal F
representative on record is not made, abatement takes place
on the expiry of the prescribed period of 90 days, by operation
of law. Abatement is not dependant upon any judicial adjudica-
tion or declaration of such abatement by a judicial order. It oc-
curs by operation of law. But nevertheless 'abatement' requires G
judicial cognizance to put an end to a case as having abated.
To borrow a phrase from Administrative Law (used with refer-
ence to void orders), an appeal bears no brand on its forehead
that it has 'abated', nor does it close itself automatically on abate-
ment. At some stage, the court has to take note of the abate- H
8 SUPREME COURT REPORTS [2008] 11 S.C.R.

A ment and record the closure of the case as .having abated (where
deceased was a sole respondent) or record that the appeal
had abated as against a particular respondent (if there are more
than 'one and the cause of action survives against the others) .
.B 6. What should be the approach of courts while consider-
ing applications under section 5 of Limitation Act, 1963, has
been indicated in several decisions. It may be sufficient to refer
to two of them. In Shakuntala Devi Jain v. Kuntal Kumari [AIR
1969 SC 575], this Court reiterated the following classic state-
C ment from Krishna vs. Chathappan [1890 ILR 13 Mad 269]:
" ... Section 5 gives the courts a discretion which in respect
of jurisdiction is to be exercised in the way in which judicial
power and discretion ought to be exercised upon
principles which are well understood; the words 'sufficient
o cause' receiving a liberal construction so as to advance
substantial justice when no negligence nor inaction nor
want of bona fides is imputable to the appellant."
In N.Balakrishnan v. M.Krishnamurthy [1998 (7) SCC
123], this Court held:
E
"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
F
criterion. Sometimes delay of the shortest range may be
uncondonable due to a want of acceptable explanation i-

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
G 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 a different matter when the first court
H refuses to condone the delay. In such cases, the superior
PERYMON BHAGBATHY v. BHARGAVI AMMA (DEAD) 9
BY LRS. & ORS. [R.V.RAVEENDRAN, J.]
~

court would be free to consider the cause shown for the A
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.
The primary function of a court is to adjudicate the dispute
8
between the parties and to advance substantial justice ......
J,
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.
A court knows that refusal to condone delay would result c
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 D
substantial justice.
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 E
mala tides or it is not put forth as part of a dilatory strategy,
the court must .show utmost 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." F
~ [Emphasis supplied]
7. This Court has also considered the scope of Rules 4
and 9 of Order 22 in several decisions. We will refer to them. In
Union of India vs. Ram Charan (Deceased) by LRs. [AIR 1964 G
SC 215], this Court observed thus:
"The provisions of the Code are with a view 'to advance
the cause of justice. Of course, the Court, in considering
whether the appellant has established sufficient cause for
his not continuing the suit in time or for not applying for the H
10 SUPREME COURT REPORTS [2008] 11 S.C.R.

A setting aside of the abatement within time, need not be
over-strict in ~xpecting such proof of the ~uggested cause
as it would accept for holding certain fact established,
both because the question does not relate to the merits of
the dispute between the parties and because if the
B abatement is set aside, the merits of the dispute can be
determined while, if the abatement is not set aside, the
appellant is deprived of his proving his claim on account
of his culpable negligence or lack of vigilance. ·

It is true that it is no duty of the appellant to make regular
c enquiries from time to time about the health or existing of
the respondent."
(Emp{Jasis supplied)
This Court also made some observations in Ram Charan
D (Supra) about the need to ·explain, in addition to alleging that
the plaintiff/appellant not being aware about the death, the rea-
sons for not knowing about the death within a reasonable time.
Those observations have stood diluted in view of subsequent
insertion of sub-rule (5) in Rule 4 ar:id .addition of Rule 1DA in
E Order 22 CPC by Amendment Act 104 of 1976, requiring (i) the
court to take note of the ignorance of death as sufficient cause
for condonation of delay, (ii) the counsel for the deceased party
to inform the court about the death of his client.

F In Ram Nath Sao vs. Gobardhan Sao [2002 (3) SCC 195]
this Court observed thus : ·
"12. 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
G receive a liberal construction so as to advance substantial
justice when no negligence or inaction or want of bona
tides is imputable to a party. In a particular case whether
explanation furnished would constitute "sufficient cause"
or not will be dependent upon facts of each case. There
H cannot be a straitjacket formula for accepting or rejecting
PERYMON BHAGBATHY v. BHARGAVI AMMA (DEAD) 11
BY LRS. & ORS. [R.V.RAVEENDRAN, J.]

explanation furnished for the delay caused in taking steps. A
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 B
when no negligence or inaction. or want of bona tides 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 C
which should not be lightly defeated by condoning delay in
a routine-like manner. However, by taking a pedantic and
hypertechnical 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 D
against whom the lis 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." E
[Emphasis supplied]
In Sita/ Prasad Saxena (dead) by LRs. v. Union of India
& Ors. [1985 (1) SCC 163], this Court stated:
" ... once an appeal is pending in the High Court, the heirs F
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. And in a traditional rural family the
father may not have informed his son about the litigation G
in which he was involved and was a party. Let it be recalled
what has been said umpteen times that rules of procedure
are designed to advance justice and should be so
interpreted as not to make them penal statutes for
punishing erring parties." H
12 SUPREME COURT REPORTS
'!
[2008] 11 S.C.R.
~

A Jn State of Madhya Pradesh vs. S. S. Akolkar - 1996 (2)
SCC 568,.this Court held :
"Under Order 22" Rule 1OA, it is the duty of the counsel, on
coming to know of the death of a party, to inform it to the
Court and the Court shall give notice to the other party of
B
the death. By necessary implication delay for substitution
of legal representatives begins to run from the date of
knowledge.
It is settled law that the consideration for condonation of
c delay Under Section 5 of Limitation Act and setting aside
of the abatement under Order 22 are entirely distinct and
different. The Court always liberally considers the latter,
though in some cases, the Court may refuse to condone
the delay Under Section 5 in filing the appeals. After the
D appeal has been filed and is pending, Government is not
expected to keep watch whether the contesting respondent
is alive or passed away. After the matter was brought to
. the notice of the counsel for the State, steps were taken
even thereafter after due verification belated application
E came to be filed. It is true that Section 5 of Limitation Act
would be applicable and delay is required to be explained.
The delay in official business requires its broach and
approach from public justice perspective."
8. The principles applicable in considering applications
F for setting aside abatement may thus be summarized as fol-
lows: +
( i) The words "sufficient cause for not making the
application within the period of limitation" should be
understood and applied in a reasonable, pragmatic,
G practical and liberal manner, depending upon the
facts and circumstances of the case. and the type of
case. The words 'sufficient cause' in section 5 of >--
Limitation Act should receive a liberal construction
so as to advance substantial justice, when the delay
H is not on account of any dilatory tactics, want of
PERYMON BHAGBATHY v. BHARGAVI AMMA (DEAD) 13
BY LRS. & ORS. [R.V.RAVEENDRAN, J.]
.>---

bonafides, deliberate inaction or negligence on the A

..... part of the appellant.
(ii) In considering the reasons for condonation of delay,
the courts are more liberal with reference to
applications for setting aside abatement, than other
B
·~ cases. While the court will have to keep in view that
a valuable right accrues to the legal representatives
of the deceased respondent when the appeal abates,
it will not punish an appellant with foreclosure of the
appeal, for unintended lapses. The courts tend to
set aside abatement and decide the matter on merits, c
rather than terminate the appeal on the ground of
abatement.
(iii) The decisive factor in condonation of delay, is not
the length of delay, but sufficiency of a satisfactory D
.. explanation .
(iv) The extent or degree of leniency to be shown by a
court depends on the nature of application and facts
and circumstances of the case. For example, courts
view delays in making applications in a pending E
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 F
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 G
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 H
Ill(
\

14 SUPREME COURT REPORTS [2008] 11 S.C.R.
r
-,;,
A 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.
B
9. Let us next also refer to some of the special factors
which have a bearing on what constitutes sufficient cause, with
reference to delay in applications for setting aside the abate-
ment and bringing the legal representatives on record.

c 10. The first is whether the appeal is pen'ding in a court where
regular and periodical dates ofhearing are fixed. There is a sig-
nificant difference between an appeal pending in a sub-ordinate
court and an appeal pending in a High Court. In lower courts,
dates of hearing are periodically fixed and a party or his counsel
D is expected to appear on those dates and keep track of the case.
The process is known as 'adjournment of hearing'. In-fact, this
Court in Ram Charan (supra) inferred that the limitation period ~
for bringing the legal representative might have been fixed as 90
days keeping in mind the adjournment procedure :
E . "The 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 pericd at a certain hearing may be
accounted by his counsel or some relation to be due to
F his death or may make. the plaintiff inquisitive about the
reasons. for the other party's absence."
~
In contrast, when an appeal is pending in a High Court,
dates of hearing are not fixed periodically. Once the appeal is
admitted, it virtually goes into storage and is listed before the
G court only when it is ripe for hearing or when some application
,1
seeking an interim direction is filed. It is common for appeals
pending in High Courts r.ot to be listed at all for several years.
(In some courts where there is a huge pendency, the non-hear- >---
- ing period may be as much as 10 years or even more). When
H the appeal is admitted by the High Court, the coun$el inform the
PERYMON BHAGBATHY v. BHARGAVI AMMA (DEAD) 15
BY LRS. & ORS. [R.V.RAVEENDRAN, J.]

parties that they will get in touch as and when the case is listed A
for hearing. There is nothing the appellant is required to do dur-
ing the period between admission of the appeal and listing of
the appeal for arguments (except filing paper books or depos-
iting the charges for preparation of paper books wherever nee-
essary). The High Courts are overloaded with appeals and the B
~ litigant is in no way responsible for non-listing for several years.
There is no need for the appellant to keep track whether the
respondent is dead or alive by periodical enquiries during the
long period between admission and listing for hearing. When
an appeal is so kept pending in suspended animation for a large c
number of years in the High Court without any date being fixed
for hearing, there is no likelihood of the appellant becoming
aware of the death of the respondent, unless both lived in the
immediate vicinity or were related or the court issues a notice
to him informing the death of the respondent. D
11. The second circumstance is whether the counsel for
the deceased respondent or the legal representative of the de-
ceased respondent notified the court about the death and
whether the court gave notice of such death to the appellant.
Rule 1OA of Order 22 casts a duty on the counsel for the re- E
spondent to inform the court about the death of such respon-
dent whenever he comes to know about it. When the death is
reported and recorded in the ordersheet/proceedings and the
appellant is notified, the appellant has knowledge of the death
and there is a duty on the part of the appellant to take steps to F
bring the legal representative of the deceased on record, in
-l,
place of the deceased. The need for diligence commences from
the date of such knowledge. If the appellant pleads ignorance
even after the court notifies him about the death of the respon-
. dent that may be indication of negligence or want of diligence. G
12. The third circumstance is whether there is any mate-
rial to contradict the claim of the appellant, if he categorically
states that tie was unaware of the death of the respondent. In
the absence of any material, the court would accept his claim
that he was not aware of the death. H

•'
16 SUPREME qoURT REPORTS [2008] 11 S.C.R. r-I
,.\_
A 13. Thus 'it can safe'ly be concluded that .if the following
three conditions exist, the courts will usually condone the delay,
I
·and set aside the abatement (even though the period of delay '
;-
is considerable and a valuable right might have accrued to the
opposite party:.... LRs of the deceased - on account of the abate-
B ·rnellt) : ··
~ ' ! :-

( i)
• ,.
'., The respondent had died during the period when the
appeal had been pending without any hearing dates
"
r

being fixed;

c (ii) Neither the counsel for the deceased respondent >I
nor. lhe ·Legal Representatives of the deceased
'respondent had reported the death of the respondent
to the court and the court has not given notice of ·
such death to the appellant.
D (iii) The appellant avers that he was unaware of the death
of the respondent and there is no material to doubt ,.l
or- contradict his claim.

14 .. If, .as ir\'this case, the appeal was admitted in 1993
E ~nd dJd not cqme up for hearing till. 2005, and the respondent
died in-betyveen, the court should not punish the appellant for
~
his ignorance of the death of respondent, by refusing to set aside
the a~atement. Lack of diligence or negligence can be attrib-
uted to an appellant only when he is aware of the death and fails
to ta.ke steps to bring the legal representatives on record. Where
F
the appellant being unaware of the death of. respondent, does
not take steps to bring the legal representatives on record, there
can be no question of any want of diligence or negligence.
15. In this case, the appeal was not being listed periodi-
G cally by the High Court. Neither the counsel for the deceased
s~cond respondent in the High Court, nor the legal representa- ~
(
tives of the deceased respondent reported her death to the High
Court. There was no notice of death to the appellant. The ap- .>-
pellant is an institution which acts through its Managing Com-
H
mittee. During the relevant period,. there was transition of man-

..
r\
.--
~
~
PERYMON BHAGBATHY v. BHARGAVI AMMA (DEAD) 17
,,. BY LRS. & ORS. [R.V.RAVEENDRAN, J.]

agement from a Court Receiver to an elected managing com- A
mittee. An affidavit was filed on behalf of the appellant that its
new Committee was unaware of the pendency of the appeal.
Being unaware of the pendency of appeal is equivalent to be-
ing unaware of the death of a respondent. This may happen in
two circumstances. First is where the appellant himself is dead B
and his LRs have newly come on record. Second is where the
appellant is an institution or company and a new Committee or
Board of Management takes over its management. In such an
event, even if they knew about the death of a person, they may
not know the significance or relevance of death of such a per- c
son with reference to a pending appeal if they do not know about
the appeal. As the appeal had already been admitted in 1993,
and as hearing dates were not fixed periodically, the new Com-
mittee had no way of knowing that the appeal was pending that
Bhargavi Amma was a party to the appeal and that the Legal o
l Representatives of the deceased Bhargavi Amma (second re-
spondent before the High Court) had not been brought on record.
In the circumstances.we are of the view that the delay was sat-
isfactorily explained. The High Court ought to have condoned
the delay, set aside .the abatement and permitted the appellant E
to bring the legal representatives of the deceased respondent
on .record.

16. We accordingly allow this appeal and set aside the
orders dated 5.10.2005 of the High Court dismissing the three
applications and the consequential order dated 5.10.2005 clos- F
ing the appeal as having abated. The delay is condoned. Abate-
ment is set aside. The legal representatives of the deceased
second respondent in the second appeal are permitted to be
brought on record. The 'cause-title of the memorandum of sec-
ond appeal before the High Court shall be amended. The High G
Court will now proceed to hear the appeal on merits in accor-
dance with law. Parties to bear their respective costs.
R.P.. Appeal allowed.

H