Madras High Court · 2025

CMP(MD) No.8833 of 2024J.SHANKAR (DIED)8 J.MONI, 9 J.RAJ, 10 SEETHA LEKSHMI... RESPONDENTS/RESPONDENTS11 KAMALAM, 12 GOMATHI... RESPONDENTS/RESPONDENTS13 S.NALINA ... 13TH RESPONDENT/13TH PROPOSED RESPONDENTIN ALL CMP'sIN ALL CMP'sFor Petitioner(s) :M/s.P.Rajalakshmi ORDERThe petitioner is the plaintiff in O.S.No.17 of 2007 on the file of the learnedPrincipal District Munsif, Nagercoil. He has filed a suit against the deceased thirdrespondent and other respondents seeking the relief of declaration and injunction.The suit was dismissed and the same was confirmed in A.S.No.3 of 2018 on the file ofthe learned Principle Sub Judge, Nagercoil. The petitioner has filed this second appealchallenging both the judgments and decrees of both the Courts below. The saidsecond appeal was admitted on 09.05.2018 and notice was issued. Thereafter, thepetitioner came to know that the third respondent died on 04.12.2017 itself and he2/20 https://www.mhc.tn.gov.in/judis CMP(MD) No.8833 of 2024immediately informed to the counsel on record. Therefore, the application was filedto condone the delay of 1538 days in filing these applications in setting aside theabatement; to set aside the abatement caused due to the death of the thirdrespondent; and to bring on record the thirteen respondent as legal heir of thedeceased/third respondent.2.The learned counsel appearing for the respondent has not filed any counterdisputing the above reason. 3.The plaintiff is appellant and he filed a suit for declaration and injunction inO.S.No.17 of 2007 and the same was dismissed by the trial Court and confirmed bythe First Appellate Court in A.S.No.3 of 2018. Aggrieved over the same, he haspreferred the second appeal and the same was admitted on 09.05.2018 and the sameis pending since then before this Court. 4.During the pendency of the above appeal, the third respondent died on04.12.2017 ie., after passing judgment in A.S.No.3 of 2013, dated 14.09.2017. The samewas 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 respondent has not furnished any details about the legalrepresentatives of the deceased/third respondent. In the said circumstances, theappellant collected the materials about the legal heirs of the deceased/third3/20 https://www.mhc.tn.gov.in/judis CMP(MD) No.8833 of 2024respondent from his own source and filed petition only on 26.06.2024. Therefore,there is abatement and consequential delay of 1538 days in setting aside theabatement caused due to the death of the third 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 litigationand 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 up4/20 https://www.mhc.tn.gov.in/judis CMP(MD) No.8833 of 2024for 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. Thedismissal 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 applications for setting asideabatement may thus be summarised as follows:(i) The words “sufficient cause for not making the application within the period of5/20 https://www.mhc.tn.gov.in/judis CMP(MD) No.8833 of 2024limitation” should be understood and applied in a reasonable, pragmatic, practicaland liberal manner, depending upon the facts and circumstances of the case, and thetype of case. The words “sufficient cause” in Section 5 of the Limitation Act shouldreceive a liberal construction so as to advance substantial justice, when the delay isnot on account of any dilatory tactics, want of bona fides, deliberate inaction ornegligence on the part of the appellant.(ii) In considering the reasons for condonation of delay, the courts are more liberalwith reference to applications for setting aside abatement, than other cases. While thecourt will have to keep in view that a valuable right accrues to the legalrepresentatives of the deceased respondent when the appeal abates, it will not punishan appellant with foreclosure of the appeal, for unintended lapses. The courts tend toset aside abatement and decide the matter on merits, rather than terminate the appealon the ground of abatement.(iii) The decisive factor in condonation of delay, is not the length of delay, butsufficiency of a satisfactory explanation.(iv) The extent or degree of leniency to be shown by a court depends on the nature ofapplication and facts and circumstances of the case. For example, courts view delaysin making applications in a pending appeal more leniently than delays in theinstitution of an appeal. The courts view applications relating to lawyer's lapses more6/20 https://www.mhc.tn.gov.in/judis CMP(MD) No.8833 of 2024leniently than applications relating to litigant's lapses. The classic example is thedifference in approach of courts to applications for condonation of delay in filing anappeal and applications for condonation of delay in refiling the appeal afterrectification of defects.(v) Want of “diligence” or “inaction” can be attributed to an appellant onlywhen something required to be done by him, is not done. When nothing is requiredto be done, courts do not expect the appellant to be diligent. Where an appeal isadmitted by the High Court and is not expected to be listed for final hearing for a fewyears, an appellant is not expected to visit the court or his lawyer every few weeks toascertain 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 theappeal.15. The first is whether the appeal is pending in a court where regular andperiodical dates of hearing are fixed. There is a significant difference between anappeal pending in a subordinate court and an appeal pending in a High Court. Inlower courts, dates of hearing are periodically fixed and a party or his counsel isexpected 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 [AIR 1964 SC 215]inferred that the limitation period for bringing the legal representative might have7/20 https://www.mhc.tn.gov.in/judis CMP(MD) No.8833 of 2024been fixed as 90 days keeping in mind the adjournment procedure : (AIR p. 220, para12)“12. … The legislature might have expected that ordinarily the interval between twosuccessive hearings of a suit will be much within three months and the absence ofany defendant within that period at a certain hearing may be accounted by hiscounsel or some relation to be due to his death or may make the plaintiff inquisitiveabout the reasons for the other party's absence.”16. In contrast, when an appeal is pending in a High Court, dates of hearing arenot fixed periodically. Once the appeal is admitted, it virtually goes into storage andis listed before the Court only when it is ripe for hearing or when some applicationseeking an interim direction is filed. It is common for appeals pending in High Courtsnot to be listed at all for several years. (In some courts where there is a hugependency, the non-hearing period may be as much as ten years or even more.) Whenthe appeal is admitted by the High Court, the counsel inform the parties that theywill get in touch as and when the case is listed for hearing. There is nothing theappellant is required to do during the period between admission of the appeal andlisting of the appeal for arguments (except filing paper books or depositing thecharges for preparation of paper books wherever necessary). The High Courts areoverloaded with appeals and the litigant is in no way responsible for non-listing for8/20 https://www.mhc.tn.gov.in/judis CMP(MD) No.8833 of 2024several years. There is no need for the appellant to keep track whether the respondentis dead or alive by periodical enquiries during the long period between admissionand listing for hearing. When an appeal is so kept pending in suspended animationfor a large number of years in the High Court without any date being fixed forhearing, there is no likelihood of the appellant becoming aware of the death of therespondent, unless both lived in the immediate vicinity or were related or the courtissues a notice to him informing the death of the respondent.17. The second circumstance is whether the counsel for the deceasedrespondent or the legal representative of the deceased respondent notified the courtabout the death and whether the court gave notice of such death to the appellant.Rule 10-A of Order 22 casts a duty on the counsel for the respondent to inform thecourt about the death of such respondent whenever he comes to know about it. Whenthe death is reported and recorded in the order-sheet/proceedings and the appellantis notified, the appellant has knowledge of the death and there is a duty on the part ofthe appellant to take steps to bring the legal representative of the deceased on record,in place of the deceased. The need for diligence commences from the date of suchknowledge. If the appellant pleads ignorance even after the court notifies him aboutthe death of the respondent that may be an indication of negligence or want ofdiligence.9/20 https://www.mhc.tn.gov.in/judis CMP(MD) No.8833 of 202418. The third circumstance is whether there is any material to contradict theclaim of the appellant, if he categorically states that he was unaware of the death ofthe respondent. In the absence of any material, the court would accept his claim thathe was not aware of the death.19. Thus it can safely be concluded that if the following three conditions exist,the courts will usually condone the delay, and set aside the abatement (even thoughthe period of delay is considerable and a valuable right might have accrued to theopposite party—LRs of the deceased—on account of the abatement):(i) The respondent had died during the period when the appeal had beenpending without any hearing dates being fixed;(ii) Neither the counsel for the deceased respondent nor the legalrepresentatives of the deceased respondent had reported the death of the respondentto the court and the court has not given notice of such death to the appellant;(iii) The appellant avers that he was unaware of the death of the respondentand there is no material to doubt or contradict his claim.21. In this case, the appeal was not being listed periodically by the High Court.Neither the counsel for the deceased second respondent in the High Court, nor thelegal representatives of the deceased respondent reported her death to the HighCourt. There was no notice of death to the appellant. The appellant is an institution10/20 https://www.mhc.tn.gov.in/judis CMP(MD) No.8833 of 2024which acts through its Managing Committee. During the relevant period, there wastransition of management from a Court Receiver to an elected Managing Committee.An affidavit was filed on behalf of the appellant that its new committee was unawareof the pendency of the appeal. Being unaware of the pendency of appeal is equivalentto being unaware of the death of a respondent. This may happen in twocircumstances. First is where the appellant himself is dead and his LRs have newlycome on record. Second is where the appellant is an institution or company and anew committee or Board of Management takes over its management. In such anevent, even if they knew about the death of a person, they may not know thesignificance or relevance of death of such a person with reference to a pending appealif they do not know about the appeal. As the appeal had already been admitted in1993, and as hearing dates were not fixed periodically, the new committee had noway of knowing that the appeal was pending, that Bhargavi Amma was a party to theappeal and that the legal representatives of the deceased Bhargavi Amma (the secondrespondent before the High Court) had not been brought on record. In thecircumstances, we are of the view that the delay was satisfactorily explained. TheHigh Court ought to have condoned the delay, set aside the abatement and permittedthe appellant to bring the legal representatives of the deceased respondent on record.6.In view of the above discussion, this Court accepts the reason stated in the11/20 https://www.mhc.tn.gov.in/judis CMP(MD) No.8833 of 2024Paragraph No.4 of the affidavit and finds no willful negligence or inaction on the partof the petitioner. Even though the respondent 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. When an applicationpraying for substitution had been made, then, even assuming that it does not have anexplicit prayer for setting aside the abatement, such prayer could be read as inherentin the prayer for substitution in the interest of justice. We draw inspiration for such aconclusion, having read the decision in Mithailal Dalsangar Singh v. AnnabaiDevram Kini. This Court reiterated the need for a justice-oriented approach in suchmatters. Inter alia, it was held that prayer to bring on record heir(s)/legalrepresentative(s) can also be construed as a prayer for setting aside the abatement.The relevant passage reads as under: “8. Inasmuch as the abatement results in denial of hearing on the merits of thecase, the provision of abatement has to be construed strictly. On the other hand, the12/20 https://www.mhc.tn.gov.in/judis CMP(MD) No.8833 of 2024prayer for setting aside an abatement and the dismissal consequent upon anabatement, have to be considered liberally. A simple prayer for bringing the legalrepresentatives on record without specifically praying for setting aside of anabatement may in substance be construed as a prayer for setting aside the abatement.So also a prayer for setting aside abatement as regards one of the plaintiffs can beconstrued as a prayer for setting aside the abatement of the suit in its entirety.Abatement of suit for failure to move an application for bringing the legalrepresentatives on record within the prescribed period of limitation is automatic anda specific order dismissing the suit as abated is not called for. Once the suit hasabated as a matter of law, though there may not have been passed on record aspecific order dismissing the suit as abated, yet the legal representatives proposing tobe brought on record or any other applicant proposing to bring the legalrepresentatives of the deceased party on record would seek the setting aside of anabatement. A prayer for bringing the legal representatives on record, if allowed,would have the effect of setting aside the abatement as the relief of setting asideabatement though not asked for in so many words is in effect being actually asked forand is necessarily implied. Too technical or pedantic an approach in such cases is notcalled for. 9. The courts have to adopt a justice-oriented approach dictated by the13/20 https://www.mhc.tn.gov.in/judis CMP(MD) No.8833 of 2024uppermost consideration that ordinarily a litigant ought not to be denied anopportunity of having a lis determined on merits unless he has, by gross negligence,deliberate inaction or something akin to misconduct, disentitled himself from seekingthe indulgence of the court. The opinion of the trial Judge allowing a prayer forsetting aside abatement and his finding on the question of availability of ‘sufficientcause’ within the meaning of sub-rule (2) of Rule 9 of Order 22 and of Section 5 of theLimitation Act, 1963 deserves to be given weight, and once arrived at would notnormally be interfered with by superior jurisdiction. 28. Rule 10-A was not originally contained in CPC, but was inserted in the CPCin the year 1976 for a noble purpose which has been acknowledged by this Court inmultiple decisions. The first of such decisions, perhaps, is Gangadhar v. Raj Kumar36where this Court held: “3. … Rule 10-A which has been added in Order XXII of the Code of CivilProcedure by the Amending Act of 1976 provides that when a pleader appearing fora party to the suit comes to know of the death of the party, he shall inform the courtabout it and the court thereafter shall issue notice to the other party. In the case of anappeal, the word ‘suit’ has to be read as ‘appeal’. This provision was introducedspecifically to mitigate the hardship arising from the fact that the party to an appealmay not come to know about the death of the other party during the pendency of the14/20 https://www.mhc.tn.gov.in/judis CMP(MD) No.8833 of 2024appeal but when it is awaiting its turn for being heard. The appeal lies dormant foryears on end and one cannot expect the other party to be a watch-dog for day-to-daysurvival of the other party. When the appeal on being notified for hearing isactivated, knowledge occasionally dawns that one or the other party has not onlydied, but the time for substitution has run out and the appeal has abated. In order tosee that administration of justice is not thwarted by such technical procedural lapse,this very innovative provision has been introduced, whereby, a duty is cast upon thelearned advocate appearing for the party who comes to know about the death of theparty to intimate to the court about the death of the party represented by the learnedcounsel and for this purpose a deeming fiction is introduced that the contractbetween dead client and lawyer subsists to the limited extent after the death of theclient. (emphasis supplied)29. Rule 10-A casts a duty upon a pleader appearing for a party to the suit tointimate the court about the death of such party. It further provides that once thecourt is informed by the pleader of a party that he is no more, the court “shall” notifythe opposing party of the death. A straightforward interpretation of this rule wouldsuggest that the court's obligation to issue notice to the other party is indeedmandatory. Nonetheless, this obligation may not arise in all circumstances. Onenotable exception could be when the information regarding the party's death is15/20 https://www.mhc.tn.gov.in/judis CMP(MD) No.8833 of 2024conveyed to the court in the presence of the opposing party's pleader or isdocumented by the court in the order sheet. In such cases, if the pleader of theconcerned party (and consequently the party itself) has already been notified, issuinga further notice from the court would not serve any substantial purpose other thanbeing an exercise by way of abundant caution. Therefore, in the aforementionedscenario, the absence of a notice from the court would not imply a failure to complywith Rule 10A, suggesting that it is not “always mandatory”. 30. Had the circumstance outlined above applied to the present appeal, wewould have likely concluded that Rule 10-A has been substantially complied with.However, the facts in this instant case are not particularly clear-cut. As previouslynoted, in the affidavit submitted alongside an application by Anil Kumar whichprimarily was not intended to inform the court of Rooprani's death, it was stated thathe is “one of the sons 22 of deceased Rooprani”. The inclusion of such pertinentinformation within an inconspicuous section of an application meant for a differentpurpose without the date of death does not, in our considered view, constitutesufficient compliance with Rule 10-A either by the pleader of the deceased or amountto due notice to Om Prakash by the court (without such death being recorded in anyorder passed subsequently in the presence of counsel for Om Prakash). To ruleotherwise would undermine the intention of Rule 10-A, which mandates the clear16/20 https://www.mhc.tn.gov.in/judis CMP(MD) No.8833 of 2024communication of information relating to death of a party which, obviously, wouldmean not only the factum of death being conveyed but also the date of death sincelimitation to apply under Article 120 of the Limitation Act, 1963 for substitutionbegins to run from the date of death. It is implicit that this information must beconveyed in a straightforward and unambiguous manner to enable the plaintiff or theappellant, as the case may be, to take steps and apply for substitution. No advantageshould be allowed to be derived if such death is, by clever drafting, sought to bedisclosed in an obscure corner of an application seeking to bring to the notice of thecourt an alleged subsequent development resulting in violation of a court’s order. 31.Having held that the manner of conveying information of the death ofRooprani was not wholly in accordance with Rule 10-A, information through theapplication of Anil Kumar cannot operate adversely against Om Prakash. Had OmPrakash been noticed by the High Court in due compliance with Rule 10-A, yet, didnot file an application for 23 substitution, he would be estopped from pleadingignorance and we would have been inclined to hold otherwise. This not being thecase, the abatement of the second appeal ought to be set aside. 32.Although no application praying for setting aside of abatement was evermade by the appellants before the High Court, but as held in Mithailal (supra), prayerfor setting aside of abatement can be read in a prayer for substitution. Accordingly,17/20 https://www.mhc.tn.gov.in/judis CMP(MD) No.8833 of 2024the abatement of the second appeal can and ought to be set aside for 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 of justice”and “litigants are legal patients suffering from injustice seeking healing for theirwounds”. The Hon'ble Supreme Court in number of cases also reiterated theprinciple that the administration of justice cannot be thwarted by technical procedurelapse. Decision on merits is good medicine to cure wounds of departed soul.Therefore, this Court inclines to condone the delay of 1538 days in setting aside theabatement caused due to the death of third respondent. In all aspects, this Court issatisfied with the reasons stated in the affidavit that the appellant got to know about18/20 https://www.mhc.tn.gov.in/judis CMP(MD) No.8833 of 2024the death of the third respondent only in the month of June, 2024, which is bona fideone and hence, this Court is inclined to condone the delay of 1538 days in settingaside the abatement caused due to the death of the third respondent on payment ofthe cost Rs.2,000/- payable to the Women Lawyers Association, attached thisMadurai Bench of Madras High Court. 8.Accordingly, these petitions are allowed and Registry is directed to carry outthe necessary amendments in the second appeal. sd/- 04/02/2025/ TRUE COPY / /02/2025 Sub-Assistant Registrar (C.S. I / II / III / IV ) Madurai Bench of Madras High Court, Madurai - 625 023. TO1 THE PRINCIPAL SUBORDINATE JUDGE, NAGERCOIL.2 THE PRINCIPAL DISTRICT MUNSIF, NAGERCOIL.COPY TO1 THE OFFICER INCHARGE, WOMEN LAWYERS ASSOCIATION,MADURAI BENCH OF MADRAS HIGH COURT, MADURAI. 19/20 https://www.mhc.tn.gov.in/judis CMP(MD) No.8833 of 20242 THE SECTION OFFICER, JUDICIAL SECTION,MADURAI BENCH OF MADRAS HIGH COURT, MADURAI. ORDER IN CMP(MD) No.8833, 8834 & 8838 of 2024inSA(MD) No.172 of 2018 Date :04/02/2025RS/GSV/SAR-(28.02.2025) 20P 5CMadurai Bench of Madras High Court is issuing certified copies in this format from 17/07/202320/20