Holding

The Supreme Court held that the High Court was not justified in refusing to condone the delay and set aside the abatement; the delay was condoned and the abatement set aside.

Summary

The State of Madhya Pradesh appealed against the dismissal of its appeal in a civil suit where the respondent, S.S. Akolkar, had died. The State filed an application under Order 22 Rule 4 of the CPC to substitute the legal representatives of the deceased, but the application was filed 15 days after the court was informed of the death, leading the High Court to reject the application, set aside the abatement, and dismiss the appeal. The Supreme Court examined whether the delay in filing the substitution application could be condoned and whether the High Court was justified in refusing to set aside the abatement. It held that the duty to inform the court of a party’s death triggers the limitation period from the date of knowledge, and that a short delay in official business can be condoned in the interest of public justice. Consequently, the Court condoned the delay, set aside the abatement, allowed the legal representatives to be brought on record, and directed the High Court to dispose of the appeal within two months.

Issues considered

Whether the delay of 15 days in filing the application for substitution of legal representatives under Order 22 CPC can be condoned.
Whether the High Court was justified in refusing to set aside the abatement of the appeal.
How Section 5 of the Limitation Act interacts with Order 22 CPC in the context of death of a party.

Legislation cited

Code of Civil Procedure, 1908s. Order 22 Rule 10, s. Order 22 Rule 4
Limitation Act, 1963s. Section 5

Subjects

abatementsubstitution of legal representativesdelay condonationSection 5 Limitation ActOrder 22 CPCdeath of partypublic justicecivil appeal

Judgment

STATE OF MADHYA PRADESH A
v.
S.S. AKOLKAR

JANUARY 25, 1996

[K. RAMASWAMY AND G.B. PATTANAIK, JJ.] B

Code of Ovil Procedure, 1908:

Order 22 Rules 4, JOA-Death of party-Bringi11g the legal repre-
se11tatives-Setti11g aside of abatement orde,-Delay i11 filillg applica- C
tion--Colldonation-Refusal of High Court-Held : Delay in official business
requires its broach alld appreach from public justice perspective--High Court
11ot right ill its refusal and so its order set aside-"'Delay co11do1led-Abateme11t
set aside-Legal Representatives brought Oil record-High Court to dispose of
the appeal withill two months since it is all old appeal Limitatioll Act-S.5.
D
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3182 of
1996.

From the Judgment and Order dated 24.11.84 of the Madhya
Pradesh High Court in C.F.A. No. 57 of 1976.
E
U.N. Bhachawat, S.K. Agnihotri and P. Kumar for the Appellant.

S.K. Gambhir for the Respondent.

The following Order of the Court was delivered :
F
Delay condoned.

Leave graoted.

Heard learned .counsel for both sides.

The respondent's Civil Suit No. 2-B of 1970 to recover Rs. 20,644 G
with proportionate costs was decreed by the District Court, Mandsaur.
First Appeal No. 57/76 filed by the appellaot was pending in the High
Court. When the matter had come up on March 16, 1983 for hearing, the
' counsel for the respondent had informed that the respondent had died on
December 31, 1980 and he gave the names of his legal representatives. The H
989
990 SUPREME COURT REPORTS [1996] 1 S.C.R.

A application for substitution of the legal representatives under Order 22,
; ,
Rule 4 of the CPC was ftled on April 8, 1983, with a delay of 15 days. The
applications for setting aside abatement and delay were dismissed by the
High Court; consequently it dismissed the appeal. Hence, this appeal by
special leave.

B
-·
It is contended by Shri Bachawat, learned senior counsel appearing
for the State, that the delay was properly explained. In the circumstances,
the High Court was not justified in refusing to condone the delay on
bringing the legal representatives on record and setting aside the abate-
ment. Shri Gambhir, learned counsel for the respondent, contended that
c in spite of the respondent's counsel having informed the counsel for the
State of the death and having given the names of the legal representatives,
no steps were taken and no diligence was shown. The delay, therefore, was
not properly explained. The High Court was right in refusing to condone
the delay. The High Court proceeded on the premise that no explanation
was given for not taking steps to bring legal representatives on record and
D
even accepting that responden~ had come to know about the death of the
plaintiff on March 16, 1983, and though the application was signed on April
'1
i, 1983, the application had come to be filed on April 8, 1983. This would
show that there was no diligence on the part of the respondent and no
proper explanation was given.
E
We find that the approach of the High Court is wholly untenable and
unsustainable. Under Order 22 Rule lOA, 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 the death. By necessary
F implication delay for substitution of legal representatives begins to run
from the date of knowledge. It is notorious that in Government proceed-
ings, no one takes personal responsibility and each would pass over the
responsibility to the other officer. It is common knowledge that almost 50%
of the cases filed in the Supreme Court are barred by limitation. Delay is
equally usual in private cases. The Court examines each case on merits.
G The counsel for the respondent had informed the death of the principal ...
respondent Akolkar on March 16, 1983. It would be obvious that counsel
for the State has to intimate the concerned officer who in turn is required
.-
to have the details ascertained through his subordinates by deputing the
concerned officer to ascertain the further details of the legal repre- •
H senlatives and feed the officer with all factual details. In the process, delay
STATEv. S.S.AKOLKAR 991

would occur. Accordingly, the applications came to be prepared on April A
7, 1983 and were filed next day. It would be obvious that they had acted
with diligence in collecting the information and filing the petition. In the
process, a short delay had occurred.

It is settled law that the consideration for condonation of delay under
Section 5 of Limitation Act and setting aside of the abatement under Order B
22 are entirely distinct and different. The Court always liberally considers
the latier, though in some cases, the Court may refuse to condone the delay
under Section 5 in filing the appeals. After the appeal has been filed and
is pending, Government is not expected to keep watch whether the con-
testing respondent is alive or passed away. After the matter was brought c
to the notice of the counsel for the State, steps were taken even thereafter;
after due verification belated application 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 ap-
proach from public justice perspective.
D
Under these circumstances, we are of the opinion that the High
Court was not right in refusing to set aside the abatement and to condone
the delay in filing of the petition to bring the legal representatives on
record.

The delay is condoned. The abatement is set aside and the legal E
representatives are brought on record. The High Court is requested to
dispose of the appeal as expeditiously as possible within two months from
the date of the receipt of the order is this is very old appeal.

The appeal is allowed. No costs.
F
G.N. Appeal allowed.

'