In the case of Perumon Bhagvathy Devaswom v. Bhargavi Amma, reportedin

C.M.P.(MD).Nos.4181, 4182 and 4183 of 201928 SUDHA 29 R.S.ABISHA 30 R.S.ANUSHA ... RESPONDENT(S)IN ALL THE PETITIONS For Petitioner(s):Mr.A.Sivaji, AdvocateORDERThe petitioners are the plaintiffs in O.S.No.649 of 1992 on the file of the learnedII Additional District Judge, Kuzhithurai. He has filed a suit against thedeceased/second respondent and other respondents seeking the relief of declarationand consequential injunction and damages. The suit was dismissed and the same wasconfirmed in A.S.No.68 of 2002 on the file of the learned Sub Judge, Kuzhithurai. Thepetitioners has filed this second appeal challenging both the judgments and decreesof both the Courts below. In the second appeal, notice was issued on 08.10.2018.Thereafter, the petitioners came to know that the second respondent died on27.08.2002 itself and he immediately informed to the counsel on record. Therefore, theapplication was filed to condone the delay of 5872 days in filing these applications insetting aside the abatement; to set aside the abatement caused due to the death of thesecond respondent; and to bring on record the respondents 28 to 30 as legal heirs ofthe deceased/second respondent.3/24 https://www.mhc.tn.gov.in/judis C.M.P.(MD).Nos.4181, 4182 and 4183 of 20192.The learned counsel appearing for the respondents has not filed any counterdisputing the above reason. 3.The plaintiffs are appellant and he filed a suit for declaration and injunction inO.S.No.649 of 1992 and the same was dismissed by the trial Court and confirmed bythe First Appellate Court in A.S.No.68 of 2002. Aggrieved over the same, he haspreferred the second appeal and the same is pending since then before this Court. 4.During the pendency of the above appeal, the second respondent died on27.08.2002 ie., before passing judgment in A.S.No.68 of 2002, dated 10.07.2017. Thesame was not informed to the appellant. The notice sent by the Registry in the abovesecond appeal returned with endorsement “died”. The learned counsel appearing forthe remaining respondents has not furnished any details about the legalrepresentatives of the deceased/second respondent. In the said circumstances, theappellant collected the materials about the legal heirs of the deceased/secondrespondent from his own source and filed petition only on 26.12.2018. Therefore,there is abatement and consequential delay of 5872 days in filing the petition to setaside the abatement caused due to the death of the second respondent. 5.In each civil suit, a litigant seeks a relief. The remedy he gets is his inheritableasset. After his life period, the said asset would devolve to descendants/legalrepresentatives. The delay in disposal of the civil suit is a sorrow of the civil litigation4/24 https://www.mhc.tn.gov.in/judis C.M.P.(MD).Nos.4181, 4182 and 4183 of 2019and is unavoidable. In such situation, due to the natural delay in the disposal of theappeal pending before this Court, litigant dies without obtaining a verdict. When anappeal is admitted by this Court, the said appeal is listed for final hearing afternumber of years. In the District Judiciary, dates of hearing are periodically fixed andparties are expected to have contact with the counsel on record and keep track of thecase. In the said process of adjournment of hearing, the death of the parties to theproceedings is normally informed. No such procedure of process of adjournment ofhearing is followed in the High Court. Once appeal is admitted, it virtually goes intothe storage of record room and it listed before the Court only at the time of the finalhearing. Neither appellant nor respondent is required to be present during the courseof the hearing. This procedure is inevitable tragedy of the civil cases in the HighCourt. Therefore, without fault on the appellant, the delay in preferring theapplication to set aside the abatement usually occurs. Only when the cases come upfor final disposal, the concerned counsel informs the litigants about it. The litiganttravels the litigation journey to the High Court after expiry of half of his life with thehope of getting justice by spending remaining part of his life. He may be unaware ofthe death of the opposite parties and also ignorant of the legal procedure to impleadthe legal heirs on the death of the parties. In such situation, natural justice demandsto condone the delay of the huge days however, extreme to meet the justice. The5/24 https://www.mhc.tn.gov.in/judis C.M.P.(MD).Nos.4181, 4182 and 4183 of 2019dismissal of the petition on the ground of delay amounts to Judicial Massacre of thelegitimate adjudication. Therefore, the Hon'ble Supreme Court in the following casesreiterated the principle that the valuable rights accrued to the legal representative ofthe deceased to continue the appeal without terminating it on the ground ofabatement with liberal approach in condoning the delay of setting aside caused dueto the death of the abatement in accepting the explanation furnished by the parties asa rule and refusal is an exception when there is no negligence or total inaction orwant of bona fide could be imputed against the litigants. 5.1.In the case of Perumon Bhagvathy Devaswom v. Bhargavi Amma, reportedin (2008) 8 SCC 321 :13. The principles applicable in considering applicationsfor setting aside abatement may thus be summarised as follows:(i) The words “sufficient cause for not making the applicationwithin the period of limitation” should be understood andapplied in a reasonable, pragmatic, practical and liberal manner,depending upon the facts and circumstances of the case, and thetype of case. The words “sufficient cause” in Section 5 of theLimitation Act should receive a liberal construction so as toadvance substantial justice, when the delay is not on account of6/24 https://www.mhc.tn.gov.in/judis C.M.P.(MD).Nos.4181, 4182 and 4183 of 2019any dilatory tactics, want of bona fides, deliberate inaction ornegligence on the part of the appellant.(ii) In considering the reasons for condonation of delay, thecourts are more liberal with reference to applications for settingaside abatement, than other cases. While the court will have tokeep in view that a valuable right accrues to the legalrepresentatives of the deceased respondent when the appealabates, it will not punish an appellant with foreclosure of theappeal, for unintended lapses. The courts tend to set asideabatement and decide the matter on merits, rather than terminatethe appeal on the ground of abatement.(iii) The decisive factor in condonation of delay, is not the lengthof delay, but sufficiency of a satisfactory explanation.(iv) The extent or degree of leniency to be shown by a courtdepends on the nature of application and facts andcircumstances of the case. For example, courts view delays inmaking applications in a pending appeal more leniently thandelays in the institution of an appeal. The courts viewapplications relating to lawyer's lapses more leniently than7/24 https://www.mhc.tn.gov.in/judis C.M.P.(MD).Nos.4181, 4182 and 4183 of 2019applications relating to litigant's lapses. The classic example isthe difference in approach of courts to applications forcondonation of delay in filing an appeal and applications forcondonation of delay in refiling the appeal after rectification ofdefects.(v) Want of “diligence” or “inaction” can be attributed to anappellant only when something required to be done by him, isnot done. When nothing is required to be done, courts do notexpect the appellant to be diligent. Where an appeal is admittedby the High Court and is not expected to be listed for finalhearing for a few years, an appellant is not expected to visit thecourt or his lawyer every few weeks to ascertain the position norkeep checking whether the contesting respondent is alive. Hemerely awaits the call or information from his counsel about thelisting of the appeal.15. The first is whether the appeal is pending in a courtwhere regular and periodical dates of hearing are fixed. There isa significant difference between an appeal pending in asubordinate court and an appeal pending in a High Court. In8/24 https://www.mhc.tn.gov.in/judis C.M.P.(MD).Nos.4181, 4182 and 4183 of 2019lower courts, dates of hearing are periodically fixed and a partyor his counsel is expected to appear on those dates and keeptrack of the case. The process is known as “adjournment ofhearing”. In fact, this Court in Ram Charan [AIR 1964 SC 215]inferred that the limitation period for bringing the legalrepresentative might have been fixed as 90 days keeping in mindthe adjournment procedure : (AIR p. 220, para 12)“12. … The legislature might have expected that ordinarily theinterval between two successive hearings of a suit will be muchwithin three months and the absence of any defendant withinthat period at a certain hearing may be accounted by his counselor some relation to be due to his death or may make the plaintiffinquisitive about the reasons for the other party's absence.”16. In contrast, when an appeal is pending in a High Court,dates of hearing are not fixed periodically. Once the appeal isadmitted, it virtually goes into storage and is listed before theCourt only when it is ripe for hearing or when some applicationseeking an interim direction is filed. It is common for appealspending in High Courts not to be listed at all for several years.9/24 https://www.mhc.tn.gov.in/judis C.M.P.(MD).Nos.4181, 4182 and 4183 of 2019(In some courts where there is a huge pendency, the non-hearingperiod may be as much as ten years or even more.) When theappeal is admitted by the High Court, the counsel inform theparties that they will get in touch as and when the case is listedfor hearing. There is nothing the appellant is required to doduring the period between admission of the appeal and listing ofthe appeal for arguments (except filing paper books ordepositing the charges for preparation of paper books wherevernecessary). The High Courts are overloaded with appeals andthe litigant is in no way responsible for non-listing for severalyears. There is no need for the appellant to keep track whetherthe respondent is dead or alive by periodical enquiries duringthe long period between admission and listing for hearing. Whenan appeal is so kept pending in suspended animation for a largenumber of years in the High Court without any date being fixedfor hearing, there is no likelihood of the appellant becomingaware of the death of the respondent, unless both lived in theimmediate vicinity or were related or the court issues a notice tohim informing the death of the respondent.10/24 https://www.mhc.tn.gov.in/judis C.M.P.(MD).Nos.4181, 4182 and 4183 of 201917. The second circumstance is whether the counsel for thedeceased respondent or the legal representative of the deceasedrespondent notified the court about the death and whether thecourt gave notice of such death to the appellant. Rule 10-A ofOrder 22 casts a duty on the counsel for the respondent to informthe court about the death of such respondent whenever he comesto know about it. When the death is reported and recorded in theorder-sheet/proceedings and the appellant is notified, theappellant has knowledge of the death and there is a duty on thepart of the appellant to take steps to bring the legalrepresentative of the deceased on record, in place of thedeceased. The need for diligence commences from the date ofsuch knowledge. If the appellant pleads ignorance even after thecourt notifies him about the death of the respondent that may bean indication of negligence or want of diligence.18. The third circumstance is whether there is any materialto contradict the claim of the appellant, if he categorically statesthat he was unaware of the death of the respondent. In the11/24 https://www.mhc.tn.gov.in/judis C.M.P.(MD).Nos.4181, 4182 and 4183 of 2019absence of any material, the court would accept his claim that hewas not aware of the death.19. Thus it can safely be concluded that if the followingthree conditions exist, the courts will usually condone the delay,and set aside the abatement (even though the period of delay isconsiderable and a valuable right might have accrued to theopposite party—LRs of the deceased—on account of theabatement):(i) The respondent had died during the period when theappeal had been pending without any hearing dates being fixed;(ii) Neither the counsel for the deceased respondent nor thelegal representatives of the deceased respondent had reportedthe death of the respondent to the court and the court has notgiven notice of such death to the appellant;(iii) The appellant avers that he was unaware of the deathof the respondent and there is no material to doubt or contradicthis claim.21. In this case, the appeal was not being listed periodicallyby the High Court. Neither the counsel for the deceased second12/24 https://www.mhc.tn.gov.in/judis C.M.P.(MD).Nos.4181, 4182 and 4183 of 2019respondent in the High Court, nor the legal representatives of thedeceased respondent reported her death to the High Court.There was no notice of death to the appellant. The appellant is aninstitution which acts through its Managing Committee. Duringthe relevant period, there was transition of management from aCourt Receiver to an elected Managing Committee. An affidavitwas filed on behalf of the appellant that its new committee wasunaware of the pendency of the appeal. Being unaware of thependency of appeal is equivalent to being unaware of the deathof a respondent. This may happen in two circumstances. First iswhere the appellant himself is dead and his LRs have newlycome on record. Second is where the appellant is an institution orcompany and a new committee or Board of Management takesover its management. In such an event, even if they knew aboutthe death of a person, they may not know the significance orrelevance of death of such a person with reference to a pendingappeal if they do not know about the appeal. As the appeal hadalready been admitted in 1993, and as hearing dates were notfixed periodically, the new committee had no way of knowing13/24 https://www.mhc.tn.gov.in/judis C.M.P.(MD).Nos.4181, 4182 and 4183 of 2019that the appeal was pending, that Bhargavi Amma was a party tothe appeal and that the legal representatives of the deceasedBhargavi Amma (the second respondent before the High Court)had not been brought on record. In the circumstances, we are ofthe view that the delay was satisfactorily explained. The HighCourt ought to have condoned the delay, set aside the abatementand permitted the appellant to bring the legal representatives ofthe deceased respondent on record.6.In view of the above discussion, this Court accepts the reason stated in theParagraph No.3 of the affidavit and finds no willful negligence or inaction on the partof the petitioners. Even though the respondents has not filed any counter, he seeks todismiss the application. It is not the case of the respondent that he had alreadyfurnished the details of the legal heirs and also no circumstances are available onrecord to presume that the appellant with knowledge willfully evaded from takingsteps. The Hon'ble Supreme Court in the case of Om Prakash Gupta @ Lalloowa(deceased) and others Vs. Rooprani in C.A.Nos.13407 and 13408 of 2024, has held asfollows:23. We find it difficult to agree with such reasoning. Whenan application praying for substitution had been made, then,14/24 https://www.mhc.tn.gov.in/judis C.M.P.(MD).Nos.4181, 4182 and 4183 of 2019even assuming that it does not have an explicit prayer for settingaside the abatement, such prayer could be read as inherent in theprayer for substitution in the interest of justice. We drawinspiration for such a conclusion, having read the decision inMithailal Dalsangar Singh v. Annabai Devram Kini. This Courtreiterated the need for a justice-oriented approach in suchmatters. Inter alia, it was held that prayer to bring on record heir(s)/legal representative(s) can also be construed as a prayer forsetting aside the abatement. The relevant passage reads asunder: “8. Inasmuch as the abatement results in denial of hearingon the merits of the case, the provision of abatement has to beconstrued strictly. On the other hand, the prayer for setting asidean abatement and the dismissal consequent upon an abatement,have to be considered liberally. A simple prayer for bringing thelegal representatives on record without specifically praying forsetting aside of an abatement may in substance be construed as aprayer for setting aside the abatement. So also a prayer forsetting aside abatement as regards one of the plaintiffs can be15/24 https://www.mhc.tn.gov.in/judis C.M.P.(MD).Nos.4181, 4182 and 4183 of 2019construed as a prayer for setting aside the abatement of the suitin its entirety. Abatement of suit for failure to move anapplication for bringing the legal representatives on recordwithin the prescribed period of limitation is automatic and aspecific order dismissing the suit as abated is not called for.Once the suit has abated as a matter of law, though there maynot have been passed on record a specific order dismissing thesuit as abated, yet the legal representatives proposing to bebrought on record or any other applicant proposing to bring thelegal representatives of the deceased party on record would seekthe setting aside of an abatement. A prayer for bringing the legalrepresentatives on record, if allowed, would have the effect ofsetting aside the abatement as the relief of setting asideabatement though not asked for in so many words is in effectbeing actually asked for and is necessarily implied. Too technicalor pedantic an approach in such cases is not called for. 9. The courts have to adopt a justice-oriented approachdictated by the uppermost consideration that ordinarily a litigantought not to be denied an opportunity of having a lis determined16/24 https://www.mhc.tn.gov.in/judis C.M.P.(MD).Nos.4181, 4182 and 4183 of 2019on merits unless he has, by gross negligence, deliberate inactionor something akin to misconduct, disentitled himself fromseeking the indulgence of the court. The opinion of the trialJudge allowing a prayer for setting aside abatement and hisfinding on the question of availability of ‘sufficient cause’ withinthe meaning of sub-rule (2) of Rule 9 of Order 22 and of Section 5of the Limitation Act, 1963 deserves to be given weight, and oncearrived at would not normally be interfered with by superiorjurisdiction.28. Rule 10-A was not originally contained in CPC, but wasinserted in the CPC in the year 1976 for a noble purpose whichhas been acknowledged by this Court in multiple decisions. Thefirst of such decisions, perhaps, is Gangadhar v. Raj Kumar36where this Court held: “3. … Rule 10-A which has been added in Order XXII ofthe Code of Civil Procedure by the Amending Act of 1976provides that when a pleader appearing for a party to the suitcomes to know of the death of the party, he shall inform thecourt about it and the court thereafter shall issue notice to the17/24 https://www.mhc.tn.gov.in/judis C.M.P.(MD).Nos.4181, 4182 and 4183 of 2019other party. In the case of an appeal, the word ‘suit’ has to beread as ‘appeal’. This provision was introduced specifically tomitigate the hardship arising from the fact that the party to anappeal may not come to know about the death of the other partyduring the pendency of the appeal but when it is awaiting itsturn for being heard. The appeal lies dormant for years on endand one cannot expect the other party to be a watch-dog for day-to-day survival of the other party. When the appeal on beingnotified for hearing is activated, knowledge occasionally dawnsthat one or the other party has not only died, but the time forsubstitution has run out and the appeal has abated. In order tosee that administration of justice is not thwarted by suchtechnical procedural lapse, this very innovative provision hasbeen introduced, whereby, a duty is cast upon the learnedadvocate appearing for the party who comes to know about thedeath of the party to intimate to the court about the death of theparty represented by the learned counsel and for this purpose adeeming fiction is introduced that the contract between deadclient and lawyer subsists to the limited extent after the death of18/24 https://www.mhc.tn.gov.in/judis C.M.P.(MD).Nos.4181, 4182 and 4183 of 2019the client. (emphasis supplied)29. Rule 10-A casts a duty upon a pleader appearing for aparty to the suit to intimate the court about the death of suchparty. It further provides that once the court is informed by thepleader of a party that he is no more, the court “shall” notify theopposing party of the death. A straightforward interpretation ofthis rule would suggest that the court's obligation to issue noticeto the other party is indeed mandatory. Nonetheless, thisobligation may not arise in all circumstances. One notableexception could be when the information regarding the party'sdeath is conveyed to the court in the presence of the opposingparty's pleader or is documented by the court in the order sheet.In such cases, if the pleader of the concerned party (andconsequently the party itself) has already been notified, issuing afurther notice from the court would not serve any substantialpurpose other than being an exercise by way of abundantcaution. Therefore, in the aforementioned scenario, the absenceof a notice from the court would not imply a failure to complywith Rule 10A, suggesting that it is not “always mandatory”. 19/24 https://www.mhc.tn.gov.in/judis C.M.P.(MD).Nos.4181, 4182 and 4183 of 201930. Had the circumstance outlined above applied to thepresent appeal, we would have likely concluded that Rule 10-Ahas been substantially complied with. However, the facts in thisinstant case are not particularly clear-cut. As previously noted,in the affidavit submitted alongside an application by AnilKumar which primarily was not intended to inform the court ofRooprani's death, it was stated that he is “one of the sons 22 ofdeceased Rooprani”. The inclusion of such pertinent informationwithin an inconspicuous section of an application meant for adifferent purpose without the date of death does not, in ourconsidered view, constitute sufficient compliance with Rule 10-Aeither by the pleader of the deceased or amount to due notice toOm Prakash by the court (without such death being recorded inany order passed subsequently in the presence of counsel forOm Prakash). To rule otherwise would undermine the intentionof Rule 10-A, which mandates the clear communication ofinformation relating to death of a party which, obviously, wouldmean not only the factum of death being conveyed but also thedate of death since limitation to apply under Article 120 of the20/24 https://www.mhc.tn.gov.in/judis C.M.P.(MD).Nos.4181, 4182 and 4183 of 2019Limitation Act, 1963 for substitution begins to run from the dateof death. It is implicit that this information must be conveyed ina straightforward and unambiguous manner to enable theplaintiff or the appellant, as the case may be, to take steps andapply for substitution. No advantage should be allowed to bederived if such death is, by clever drafting, sought to bedisclosed in an obscure corner of an application seeking to bringto the notice of the court an alleged subsequent developmentresulting in violation of a court’s order. 31.Having held that the manner of conveying informationof the death of Rooprani was not wholly in accordance with Rule10-A, information through the application of Anil Kumar cannotoperate adversely against Om Prakash. Had Om Prakash beennoticed by the High Court in due compliance with Rule 10-A,yet, did not file an application for 23 substitution, he would beestopped from pleading ignorance and we would have beeninclined to hold otherwise. This not being the case, theabatement of the second appeal ought to be set aside. 21/24 https://www.mhc.tn.gov.in/judis C.M.P.(MD).Nos.4181, 4182 and 4183 of 201932.Although no application praying for setting aside ofabatement was ever made by the appellants before the HighCourt, but as held in Mithailal (supra), prayer for setting aside ofabatement can be read in a prayer for substitution. Accordingly,the abatement of the second appeal can and ought to be set asidefor ends of justice. 7.From the above judgment, it is clear that information about the date of deathmust be conveyed in straight forward and unambiguous manner to enable theappellant to take steps and apply for substitution. When this Court is unable tofollow the “process of adjournment” as followed by the District Judiciary, dismissalof petition to condone delay, however, abnormal in setting aside the abatementcaused due to death of either the appellant or the respondent would amount tojudicial massacre. Abnormal delay is natural consequences of procedure that is beingfollowed by this Court. Therefore, it is unfair to drive the departed soul from thisCourt premises without allowing his soul to rest in peace by dismissing the litigationwithout deciding on merit. Hence, it is appropriate to remind and recapitulate theepic words of Hon'ble Thiru. Justice Krishna Iyer: “Procedure is handmaid ofjustice” and “litigants are legal patients suffering from injustice seeking healing fortheir wounds”. The Hon'ble Supreme Court in number of cases also reiterated the22/24 https://www.mhc.tn.gov.in/judis C.M.P.(MD).Nos.4181, 4182 and 4183 of 2019principle that the administration of justice cannot be thwarted by technical procedurelapse. Decision on merits is good medicine to cure wounds of departed soul.8.In all aspects, this Court is satisfied with the reasons stated in the affidavitthat the appellant got to know about the death of the second respondent only in themonth of December, 2018, and hence, inclines to condone the delay of 5872 days insetting aside the abatement caused due to the death of the second respondent onpayment of cost of Rs.4,000/- payable to the respondent's counsel.9.Accordingly, these petitions are allowed on the following terms of condition:- 9.1.The petitioners shall pay a sum of Rs.4,000/- (RupeesFour Thousand Only) to the respondent's counsel on or before08.04.2025, failing which, these petition stand dismissedautomatically without further reference to this Court. 10.Registry is directed to carry out the necessary amendments in the secondappeal and list the second appeal on 25.04.2025. sd/- 06/02/2025 / TRUE COPY / /04/2025 Sub-Assistant Registrar ( C.S. I / II / III / IV ) Madurai Bench of Madras High Court, Madurai - 625 023. 23/24 https://www.mhc.tn.gov.in/judis C.M.P.(MD).Nos.4181, 4182 and 4183 of 2019VSGTO1 THE SUBORDINATE JUDGE,KUZHITHURAI.2 THE II ADDITIONAL DISTRICT MUNSIF, KUZHITHURAI. ORDER IN C.M.P.(MD).Nos.4181, 4182 and 4183 of 2019inS.A.(MD).No.270 of 2018 Date :06/02/2025 SA/SAR. /21.04.2025/24P/3CMadurai Bench of Madras High Court is issuing certified copies in this format from 17/07/2023. 24/24