Supreme Court of India
KATARI SURYANARAYANA & ORS.versusKOPPISETTI SUBBA RAO & ORS.
- Citation
- 2009 INSC 467
- Decided
- 8 April 2009
- Disposal
- Dismissed
- Bench
- S B SINHA
Holding
The Supreme Court held that the delay was not condoned as no sufficient cause was shown, and the second appeal remained abated.
Summary
The dispute concerned the right of two neighbouring parties to use a lane connecting their houses. Respondents filed a suit for injunction which was dismissed, and the order was appealed; the appellants then filed a second appeal before the High Court. During the pendency of that appeal, respondents No.2 and No.3 died, but no application to substitute their heirs or legal representatives was filed within the 90‑day period prescribed by Order 22 Rule 9 of the CPC. After a delay of over six years, the appellants sought condonation of delay to bring the heirs on record, which the High Court refused and held that the appeal had abated. The Supreme Court examined whether ignorance of the deaths could constitute "sufficient cause" for condonation and reiterated that applications to set aside abatement must be dealt with liberally but require a satisfactory explanation; it found no such cause and dismissed the appeal, leaving the abatement in force.
Issues considered
- Whether the delay of more than six years in filing an application under Order 22 Rule 9 CPC to bring the heirs of deceased respondents on record can be condoned.
- Whether the appellant's claim of ignorance of the respondents' deaths constitutes sufficient cause for condonation of delay.
- Whether the second appeal stands abated due to the death of respondents without substitution within the prescribed period.
Legislation cited
- Code of Civil Procedure, 1908s. Order 22 Rule 10A, s. Order 22 Rule 9
- Limitation Act, 1963s. Section 3, s. Section 5
Subjects
AbatementSecond appealOrder 22 CPCCondonation of delayLegal representativesLimitation ActEasementInjunction
Judgment
[2009] 5 S.C.R. 672 ~
A KATARI SURYANARAYANA & ORS. .,,
v.
KOPPISETTI SUBBA RAO & ORS.
(Civil Appeal No. 2240 of 2009)
B
APRIL 8, 2009 " •
[S.8. SINHA AND DR. MUKUNDAKAM SHARMA, JJ.]
Code of Civil Procedure, 1908 - Order 22 Rule 9 -
Abatement of second appeal- Dispute between parties over
c their right to use a lane connecting their respective residential
houses - Suit filed by respondents for grant of injunction
against appellants was dismissed - Order set aside in appeal
- Appellants filed second appeal, during pendency of which
respondent nos.2 and 3 died - No application for their
D substitution within time period prescribed under Order 22, rule
9 of CPC was filed - Appellants filed application for bringing
on record the heirs and LRs of respondent nos. 2 and 3 after
long delay - High Court declined to condone the delay and
held that second appeal filed by appellants must be
E dismissed having abated - Justification of - Held: Justified
- On facts, no sufficient cause was shown for purpose of
condonation of delay in bringing 011 record the names of heirs
or LRs of deceased respondent /llos.2 and 3.
Dispute arose between the parties over their right to
F use a lane which connected their respective residential
houses. Respondents filed suit for grant of injunction
-4,
- '
against the appellants which was dismissed. The order
was seuside in appeal. Appellants filed second appeal
before High Court, during pendency of which respondent
G nos. 2 and 3 died. No application for their substitution
within the time period prescribed under Order 22, rule 9
of CPC was filed. Appellants filed application for bringing
on record the heirs and legal representatives of the said
H 672
KATARI SURYANARAYANA & ORS. v. KOPPISETII 673
SUBBA RAO & ORS.
-+
respondent nos. 2 and 3 after a delay of 2381 days and A
2601 days respectively alongwith an application for
condonation of delay in filing the said application. The
High Court declined to condone the delay in bringing on
record the heirs and legal representatives of respondent
... .,., nos. 2 and 3 and consequently held that the second B
appeal filed by the appellants must be dismissed having
abated.
In appeal to this Court, it was contended by the
appellants that the High Court erred in failing to consider
the fact that the appellants were not aware of the
c
consequences of death of respondent nos. 2 and 3 and
they came to know thereabout only through their counsel
at a much later date. It was further contended that in any
event, the provision of Order 22, rule 1OA of CPC
mandating the counsel of the deceased to duly inform the D
Court in regard to their clients passing away having not
been complied, the judgment passed by the High Court
cannot be sustained.
Dismissing the appeal, the Court E
HELD: 1. Different considerations arise in the matter
of condoning the delay in filing an application for setting
aside an abatement upon condonation of delay in a suit
.. } and an appeal. Such applications should be construed
F
liberally: The Court would take a-more liberal attitude in
the matter oT condonation of delay in filing such an
application. There are, however, exceptions to the said
rule. [Para 10] [679-E, F]
2.1. It may be true that a distinction exists where an G
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, by itself may
not be sufficient to arrive at a conclusion that the parties
were not aware of the consequences thereof. Appellants H
674 SUPREME COURT REPORTS [2009] 5 S.C.R.
A themselves rely on the provisionis of Order 22, rule 10A
of CPC, 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
B case may be, to file an application for condonation of ;I._ ..
delay in bringing on record the heirs and legal
representatives of a deceased plaintiff/appellant or
defendant/respondent within the period prescribed. [Para
11) [680-A-C]
c 2.2. In the present case, the parties hereto are
neighbours. They are fighting ovEtr the right to use a lane
which connects their respective residential houses. It is
therefore difficult to appreciate that the appellant was not
aware of the dates of death of re!spondent nos. 2 and 3.
D It is difficult to conceive that the appellants were not in
touch with their advocates. If not every week, they are
expected to contact their lawyers once in a year.
Ignorance of legal consequence without something more,
would be not sufficient to condone such a huge delay.
E Appellants are literates. They have been fighting their
cases for a long time. The High Court has categorically
arrived at a finding that no sufficient cause has been
shown for the purpose of co1r1donation of delay in
bringing on record the names of the heirs or legal
F representatives of the deceased respondent Nos.2 and
.....
3. Appellants have pleaded abc>ut the intimation from
"'
their counsel. There is noting on record to show whether
the said intimation was written or oral. In this view of the
matter, it is not a fit case where this Court should exercise
G its discretionary jurisdiction under Article 136 of the
Constitution. [Paras 11, 13 and 14) [679-G; 687 -C-E; 687-
F, G]
Union of India v. Ram Charan & Ors., 1964 (3) SCR 467;
Bhag Singh & Ors. v. Major Daljit Singh & Ors., 1987 (Suppl.)
H
KATARI SURYANARAYANA & ORS. v. KOPPISETTI 675
SUBBA RAO & ORS.
SCC 685; Bhag Mal @ Ram Bux & Ors. v. Munshi (Dead) A
. by LRs & Ors., (2007) 11 SCC 285 and Perumon Bhagwathy
Devaswom, Perinadu Village v. Bhargavi Amma (Dead) by
LRs & Ors., 2008 (8) SCC 321, referred to.
... -" Case Law Reference:
B
1964 (3) SCR 467 Para 12 referred to
1987 (Suppl.) sec 685 Para 12 referred to
(2007) 11 sec 285 Para 12 referred to
2008 (8) sec 321 Para 12 refeffed to
c
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2240 of 2009.
-f From the Judgment & Order dated 26.12.2006 of the High D
Court of Andhra Pradesh in S.A. No. 192/1997 and S.A.M.P.
Nos. 3284-3289/2006 in S.A. Nos. 192/1997.
G. Ramakrishna Prasad, Suyodhan Byrapaneni and Amar
Pal for the Appellants.
E
T.V. Ratnam and M. Chandreshekhar for the Respondents.
The Judgment of the Court was delivered by
j. S.S. SINHA, J. 1. Leave granted.
"' F
2. Effect of abatement of an appeal, as envisaged under
Order 22 Rule 9 of the Code of Civil Procedure is involved in
this appeal which arises out of a judgment and order dated
26.12.2006 passed by a learned Single Judge of the High
Court of Judicature Andhra Pradesh at Hyderabad in Second G
Appeal No.192 of 1997 dismissing an application 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
H
676 SUPREME COURT REPORTS [2009] 5 S.C.R.
A 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 questioin involved, we may notice
the fact of the matter.
B ,,_ ...
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 passagei in exercise of their right
of easement. They purchased some property including the 1/
c 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
D Munsif, Ramachandrapuram on or about 27.12.1985 praying, t
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 dated 15.6.1993.
E
5. Respondent preferred an appeal thereagainst. The
Subordinate Judge, Ramachandrapuram allowed the said
appeal by a judgment and decree dated 22.11.1996 holding
that they being the owners of the land in suit, were entitled to a
F decree for mandatory as also permanent injunction. -\ "'
6. Appellant approached the High Court in the year 1997
aggrieved by and dissatisfied with the said judgment and
decree of the First Appellate Court by preferring a second
G appeal which was marked as SA No.192of1997. Indisputably
during the pendency of the said appeal; whereas Respondent
No.3 expired on 31.5.1999, Respondent No.2 expired on
'I
14.1.2000. No application for their substitution within the period
prescribed under Order XXll Rule 9 of the Code of Civil
Procedure was filed. Appellant filed an application for bringing
H
KATARI SURYANARAYANA & ORS. v. KOPPISETII 677
SUBBA RAO & ORS. [S.B. SINHA, J.]
i
on record the heirs and legal representatives of the said A
. respondent Nos.2 and 3 only in December 2006 alleging that
they had been informed thereabout by their counsel only on
19.11.2006. An application for condonation of delay in filing
the said application was also filed. The said applications, as
. -".
noticed hereinbefore, were barred by 2381 days and 2601 B
days respectively. By reason of the impugned judgment and
order, the High Court refused to condone the delay in bringing .
on records the heirs and legal representatives of respondent
Nos.2 and 3. Consequently, as indicated hereinbefore, it was
held that the appeal had abated. c
7. Mr. G. Ramakrishna Prasad, learned counsel
appearing on behalf of the appellant, would urge :
(1) The High Court committed a grave error insofar it
failed to take into consideration the fact that the D
appellants were not aware of the consequences of
the death of the respondents and they had come
to know thereabout only through the counsel at a
much later state. In any event, the provision of
Order 22 Rule 1OA of the Code of Civil Procedure E
mandating the counsel of the deceased to duly
inform the Court in regard to their clients passing
away having not been complied with, the impugned
judgment cannot be sustained.
. ) (2) A distinction must be borne in mind in regard to F
application of Order 22 Rule 9 in a civil suit where
the parties are required to appear on each and
every date of hearing and a Second Appeal and
an appeal as the same where the matter is listed
after a few years and in that view of the matter, a G
liberal 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: H
678 SUPREME COURT REPORTS (2009) 5 S.C.R.
A (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
B
the abatement of the proceedings runs from the "- .
date of death and not from the date of knowledge
the~eabout, the High Court must be held to have
correctly determined the issue before it.
c 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 XXll of the Code provides for the consequences
D 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.
E Order XXll Rule 3 lays down the procedure in case of
death of one of the several plaintiffs or sole plaintiff for bring on
record the heirs and legal representatives of a deceased
plaintiff or one of the plaintiffs, an application is required to be
filed within the period prescribed therefor. The period
F prescribed for such an application indisputably is 90 days. Sub- .
rule 2 of Rule 3 of Order XXll provides for the consequences of '
not filing such an application, that is, that the suit shall abate so
far as the deceased plaintiff is concerned. A similar procedure
has been laid down in case of death of one of the several
G defendants or a sole defendant in Rule 4 of Order XXll.
Rule 9 of Order XXll provides for the effect of abatement
or dismissal, stating : )c
"9. Effect of abatement or dismissal.-(1) Where a suit
H abates or is dismissed under this Order, no fresh suit shall
KATARI SURYANARAYANA & ORS. v. KOPPISETII 679
SUBBA RAO & ORS. [S.B. SINHA, J.]
--1
be brought on the same cause of action. A
(2) The plaintiff or the person claiming to be the legal
representative of a deceased plaintiff or the assignee or
the receiver in the case of an insolvent plaintiff may apply
for an order to set aside the abatement or djsmissal; and
. _,._
if it is proved that he was prevented by any sufficient cause
B
from continuing the suit, the Court shall set aside the
abatement or dismissal upon such terms as to costs or
otherwise as it thinks fit.
(3) The provisions of section 5 of the 'Indian Limitation Act, c
1877 (15of1877), shall apply to applications under sub-
rule (2).
Explanation.--Nothing in this rule shall be construed as
barring, in any later suit, a defence based -on the facts D
which constituted the cause of action in the suit which had
abated or had been dismissed under this Order."
Rule 1 OA of Order XXI I provides for the duty of a pleader
to communicate to the court death of a party.
E
10. It is now trite by reason of various decisions of this
Court that different considerations arise in the matter of
condoning the delay in filing an application for setting aside an
abatement upon condonation of delay in a suit and an appeal.
It is furthermore neither in doubt nor in dispute that such F
applications should be considered liberally. The Court would
take a more liberal attitude in the matter of condonation of delay
in filing such an application. There are, however, exceptions to
the said rule.
11. Parties hereto were neighbours. They were fighting G
over the right to use a lane which connects their respective
-" residential houses. It is, therefore, difficult for us to appreciate
that the appellant was not aware of the dates of death of
respondent Nas.2 and 3.
H
•
680 SUPREME COURT REPORTS [2009] 5 S.C.R.
A 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
B consequences thereof. Appellants themselves rely on the
provisions of Order XXll Rule 1QA 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
c 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
D 467], a Three Judge Bench of this Court, held :
"... Of course, the Court, in considering whether the
appellant has established sufficient cause for his not
continuing the suit in time Clr for not applying for the setting
E aside of the abatement within time, need not be over-strict
in expecting such proof of the suggested 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 abatement is set
F 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. This, however, does not
mean that the Court should readily accept whatever the
appellant alleges to explain away his default. It has to
G
scrutinize it and would be fully justified in considering the
merits of the evidence led to establish the cause for the .
appellant's default in applying within time for the
impleading of the legal representatives ~f the deceased
"
or for setting aside the abatement.
H
KATARI SURYANARAYANA & ORS. v. KOPPISETII 681
SUBBA RAO & ORS. [S.B. SINHA, J.)
-+
It is true, as contended, that it is no duty of the appellant A
to make regular enquiries from time to time about the
health or existence of the opposite party, but it does not
mean that the mere fact of the appellant's coming to know
of the respondent's death belatedly will, by itself, justify
-l -'I his application for setting aside the abatement. That is B
not the law. Rule 9 of 0. XXll of the Code requires the
plaintiff to prove that he was prevented by any sufficient
cause from continuing the suit. The mere allegation about
his not coming to know of the death of the opposite party
is not sufficient. He had to state reasons which, according c
to him, led to his not knowing of the death of the defendant
within reasonable time and to establish those reasons to
the satisfaction of the Court, specially when the correctness
of those reasons is challenged by the legal representatives
of the deceased who have secured a valuable right on the D
abatement of the suit."
It was furthermore opined :
"The period of limitation prescribed for making such an
application is three months, under Art. 171 of the First E
Schedule to the Limitation Act. This is a sufficiently long
period and appears to have been fixed by the legislature
on the expectancy that ordinarily the plaintiff would be
able to team of the death of the defendant and of the
persons who are his legal representatives within that F
period. 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 period at a certain
hearing may be accounted by his counsel or some G
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
H
682 SUPREME COURT REPORTS [2009] 5 S.C.R.
t
A 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
B 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
c or for the plaintiff's not applying to bring the legal
representatives of the deceased defendant on the record
or would be held to be sufficient cause for not making an
application to set aside the abatement within the time
prescribed. But it can be said that the delay in the making
D
of such applications should not be for reasons which
indicate the plaintiffs negligence in not taking certain steps
..
which he could have and should have taken. What would
be such necessary steps would again depend on the
circumstances of a particular case and each case will have
to be decided by the Court on the facts an circumstances
E of the case. Any statement of illustrative circumstances or
facts can tend to be a curb on the free exercise of its mind
by the Court in determining whether the facts and
circumstances of a particular case amount to 'sufficient
cause' or not. Courts have to use their discretion in the
F matter soundly in the interests of justice."
(Emphasis supplied)
The aforementioned decision has been noticed by this
Court in Bhag Singh & Ors. v. Major Daljit Singh & Ors. 1987
G
(Supp) SCC 685], to opined:
"The law is now well settled by several decisions which ):
.
have been cited before us, Prem Nath v. Mis. Kandoomal
Rikhiram and Hanuman Dass v. Pirthivi Nath as well as
H of this Court reported in Union of lnaid v. Ram Charan
KATARI SURYANARAYANA & ORS. v. KOPPISETII 683
-t SUBBA RAO & ORS. [S.B. SINHA, J.]
that the court while considering an application under A
Section 5 of the Limitation Act will consider the facts and
circumstances not for taking too strict and pedantic stand
which will cause injustice but to consider it from the point
of taking a view which will advance the cause of justice."
_.. --'< B
In that case, however, the application for condonation was
allowed.
Reliance has been placed by Mr. Ramakrishna Prasad on
.. a decision of this Court in Bhag Mal @ Ram Bux & Ors. v.
Munshi (Dead) by LRs & Ors. [(2007) 11 SCC 285], wherein
it was held:
c
"12. It is no doubt true that in terms of Section 3 of the
- }
. Limitation Act, 1963 as also the provisions of the said Act,
a suit must be filed within the prescribed period of
limitation. The civil court has no jurisdiction to extend the
D
same.
13. However the provisions of the Limitation Act should ·be
construed in a broad manner. Different provisions of the
Limitations Act may require different constructions, as for E
example, the court exercised its power in a given case
liberally in condoning the delay may have to be taken into
consideration for examining its correctness 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 F
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 G
principle of law. Had the appeal been dismissed on merit,
I 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 H
684 SUPREME COURT REPORTS [2009] 5 S.C.R.
t
A 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 hyp()thetical situation. An appeal
abates after three years of the judgment and decree
passed by the first appellate court and in that situation the
8 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"
c Reliance has also been placed on a recent decision of this (
Court in Perumon Bhagwathy Devaswom, Perinadu Village v.
Bhargavi Amma (Dead) by t.Rs & Ors. ((2008) 8 SCC 321].
D
Raveendran J, speaking for the Bench, upon noticing a large
number of decisions, held :
"9. This Court also made some observations in Ram
i
-
Charan (Supra) about the need to explain, in addition to
alleging that the plaintiff/appellant not being aware about
the death, the reasons for not knowing about the death
E within a reasonable time. Those observations have stood
diluted in view of subsequent insertion of sub-rule (5) in
Rule 4 and addition of Rule 1OA in 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
F condonation of delay, (ii) the counsel for the deceased
party to inform the court about the death of his client."
The principles applicable for the purpose of considering
applications for setting aside abatement had been
summarized, inter alia, directing :
G
"(i) The words "sufficient cause for not making the
application within the period of limitation" should be •
understood and applied in a reasonable, pragmatic, '
practical and liberal manner, depending upon the facts and
H circumstances of the case, and the type of case. The
KATARI SURYANARAYANA &ORS. v. KOPPISETTI 685
SUBBA RAO & ORS. [S.B. SINHA, J .]
words 'sufficient cause' in section 5 of Limitation Act A
should receive 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
negligence on the part of the appellant.
B
(ii) In considering the reasons for condonation of delay, the
courts are more liberal with reference to applications 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 appellant with C
foreclosure of the appeal, for unintended lapses. The courts
tend to set aside abatement and decide the matter on
merits, rather than terminate the appeal on the ground of
abatement.
D
(iii) The decisive factor in condo nation 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 E
depends on the nature of application and facts and
circumstances of the case. For example, courts view
delays in making applications in a pending 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 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.
G
(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 H
686 SUPREME COURT REPORTS [2009] 5 $;C.R.
A 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
s 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
is pending vis-a-vis an appeal is pending before a High Court,
C stating :
"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
D before the court only when it is ripe for hearing or when
some application seeking an interim direction is filed. It is
common for appeals pending in High Courts not to be
listed at all for several years. (In some courts where there
is a huge pendency, the non-hearing period may be as
E much as 10 years or even more). When the appeal is
admitted by the High Court, the counsel inform the parties
that they will get in touch as and when the case is listed
for hearing. There is nothing the appellant is required to
do during the period between admission of the appeal and
F listing of the appeal for arguments (except filing paper
books or depositing the charges for preparation of paper
books wherever necessary). The High Courts are
overloaded with appeals and the litigant is in no way
responsible for non- listing for several years. There is no
need for the appellant to keep track whether the
G
respondent is dead or alive by periodical enquiries during
the long period between admission and listing tor hearing.
When an appeal is so kept pending in suspended
animation for a large number of years in the High Court
without any date being 'fixed for hearing, there is no
H
KATARI SURYANARAYANA & ORS. v. KOPPISETTI 687
SUBBA RAO & ORS. [S.B. SINHA, J.]
likelihood of the appellant becoming aware of the death A
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."
The learned Judge had brought about a clear distinction
8
between a case where the parties had been living in immediate
vicinity or were related to the Court or had issued notice on him
informing the death of the respondent and in other cases.
13. It is not in dispute that the appellants were neighbours.
They were co-sharers. The respective dates of death of the C
respondent Nos.2 and 3, thus, were known to them. It is difficult
to conceive that the petitioners were not in touch with their
learned advocates from 1999 to December 2006. If not every
week, they are expected to contact their lawyers once in a year.
Ignorance of legal consequence without something more would, D
in our opinion, be not sufficient to condone such a huge delay.
Appellants are literates. They have been fighting their cases for
a long time. The High Court in its impugned judgment has
categorically arrived at a finding that no sufficient cause has
been shown for the purpose of condonation of delay in bringing E
on record the names of the heirs or legal representatives of the
deceased respondent Nos.2 and 3.
Appellants have pleaded about the intimation from their
counsel. There is nothing on record to show whether the said
intimation was written or. oral. F
14. In view of the matter, we are of the opinion that it is
not a fit case where this Court should exercise its discretionary
jurisdiction un.der Article 136 of the Constitution of India. This
appeal is dismissed accordingly. No costs. G
B.B.B. Appeal dismissed.
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