Rajasthan) v. Shri Muni Subratnath Digambar Jain Panchayat, Madanganj- Kishangarh, Through Its

: Mr. Veyankatesh Garg with Mr. Harsh Dadhich, Mr. Harsh Mangal and Mr. Pranjal Mundhra For Respondent(s) : Mr. Aman Pareek HON'BLE MR. JUSTICE ASHOK KUMAR JAIN 22/01/2025 Order

1. Instant Civil Misc. Appeal is preferred by appellants (legal heirs of defendant) aggrieved from dismissal of civil regular appeal No. 33/2013 and subsequent dismissal of application dated [2025:RJ-JP:3282] (2 of 11) [CMA-2996/2023]

07.01.2023 and application under Section 5 of Limitation Act filed for setting aside abatement order dated 16.12.2022.

2. Learned counsel for appellants while relying upon grounds of appeal submitted that respondent-plaintiff has filed a civil suit for eviction before learned Civil Judge (Junior Division) and same was decreed on 06.05.2013, and aggrieved from judgment and decree dated 06.05.2013, a civil regular appeal No. 33/2013 was filed by defendant-Shyam Sundar Agarwal before learned Additional District Judge, Kishangarh and during pendency of this appeal Shyam Sundar Agarwal has expired on 31.12.2021 and learned Appellate Court has dismissed the appeal in abatement on

16.12.2022. After knowledge of dismissal of appeal in abatement by execution proceedings, an application for setting aside of abatement along with condonation of delay has been filed on

07.01.2023 but learned Appellate Court has dismissed the same only on ground of delay. He further relied upon the judgment in cases of Dinesh Kumar And Anr. Vs. Shiv Taj Singh and Ors. 2023 SCC Online Raj. 4939, Jiwan and Ors. Vs. Ram Pal and Ors. SCC Online HP 752, Perumon Bhagvathy Devaswom Perinadu Village Vs. Bhargavi Amma (dead) by LRs and Ors. (2008) 8 SCC 321, Raghuveer Prasad and Anr. Vs. Vishnu Dutt 2011 SCC Online All. 136, Banwari Lal (dead) by Lrs. and Anr. Vs. Balbir Singh (2016) 1 SCC 607, Sanwarmal Saini Vs. Jugal Kishore Jhunjhunwala and Anr. 2019 SCC Online Raj. 6657, L. Venkateswarlu (dead) by Lrs. Vs. State of Andhra Pradesh and Ors. (2011) 4 SCC 363, Karedla Parthasaradhi Vs. Gangula Ramanamma (dead) through LRs. (2014) 15 SCC 789, Ram Nath Sao @ Ram Nath Sahu [2025:RJ-JP:3282] (3 of 11) [CMA-2996/2023] and Ors. Vs. Gobardhan Sao and Ors. (2002) 3 SCC 195 and submitted that an important rights of petitioners are required to be adjudicated on merits by the Appellate Court but the Appellate Court has dismissed the appeal on technical grounds and further prayer, to set aside order of abatement was also refused. He further submitted that in cases like the present one the appellants are entitled for adjudication on merits.

3. Aforesaid contentions were opposed by learned counsel for respondent-plaintiff and he submitted that there is a deliberate delay by appellants in filing application for substitution of legal heirs. He further submitted that appellants were negligent in pursuing the appeal before the Appellate Court and due to negligence, the appeal was dismissed in abatement. He further submitted that the application for setting aside of abatement was also filed after a substantial delay and application for condonation of delay sans sufficient reasons, therefore same cannot be accepted unless any sufficient cause, is assigned. He further referred the judgment in case of Balwant Singh (dead) Vs. Jagdish Singh and ORs. AIR 2010 SC 3043 and order of this Court in case of Smt. Ratan Shastri Vs. Ms. Indira Associates Pvt. Ltd. and Ors., S.B. Civil First Appeal No. 488/2018 passed on 18.04.2024. He further referred the applications filed for setting aside of abatement, substitution of legal heirs along with application under Section 5 of Limitation Act and submitted that the content of applications were not sufficient to allow these applications. At last, he prayed for the dismissal of the instant civil misc. appeal. [2025:RJ-JP:3282] (4 of 11) [CMA-2996/2023]

4. Heard learned counsel for the parties and perused the judgments as referred by learned counsel for the parties and also perused the material available on record.

5. The facts giving rise to instant civil misc. appeal are that respondent-plaintiff has filed a civil suit for eviction of premises let out to Shyam Sundar Agarwal-defendant (now deceased) under the Transfer of Property Act. Thus suit was decreed for eviction on

06.05.2013. Aggrieved from decree, first appeal under Section 96 of CPC was filed before learned Additional District Judge, Kishangarh and same was pending when appellant-defendant Shyam Sundar Agarwal has expired on 31.12.2021.

6. On 07.01.2023, an application for setting aside of abatement and bringing legal heirs on record under Order 22 Rule 4 and 9 read with Section 151 CPC was filed by legal heirs of Shyam Sunder, with application under Section 5 of Limitation Act. After considering all the applications, learned Trial Court was of the view that application for setting aside of abatement was not filed within prescribed time and now same has been filed after a substantial delay of more than one year, therefore, no ground for condonation of delay. The Appellate Court, ultimately dismissed the application under Section 5 of Limitation Act which resulted into dismissal of application under Order 22 Rule 4 and 9 read with Section 151 CPC.

7. A very important aspect which was referred by learned counsels for the parties is that when the suit was filed under Section 106 of the Transfer of Property Act, then an objection was raised about maintainability of suit under the Transfer of Property Act, but despite the objection, the suit was decreed in favor of [2025:RJ-JP:3282] (5 of 11) [CMA-2996/2023] plaintiff. When appeal No. 33/2013 was pending before the learned Appellate Court, a suggestion was given that the issue relating to maintainability of eviction/possession suit under the T.P. Act is pending before Hon’ble Supreme Court for consideration, therefore, as and when the issue will be decided the record be called for disposal. Ultimately, the proceeding in apepal was adjourned sine die, till outcome of issue pending before Hon’ble Supreme Court.

8. An application dated 25.07.2022 was filed by respondent- plaintiff informing the Appellate Court that Hon’ble Supreme Court has decided issue relating to Section 106 of Transfer of Property Act in case of Shankarlal Nadani Vs. Sohanlal Jain reported as 2022 SAR (Civil) Page 617, therefore, the appeal be taken up on number. On basis of this application, the Appellate Court has directed on 02.11.2022 to issue notice to appellant-defendant. The file (record) was received from record room on 16.12.2022 and on 23.11.2022, the Appellate Court has noticed that Shyam Sundar Agarwal has expired on 31.12.2021. The Appellate Court considering the death of appellant-defendant Shyam Sundar Agarwal has abated the appeal on 16.12.2022. Thereafter, on

07.01.2023, an application is filed for setting aside of abatement and also for condonation of delay which was dismissed on

18.09.2023.

9. A perusal of facts clearly indicates that Civil First Appeal No. 33/2013 was disposed of and consigned to record with consent of the parties on 25.02.2020 with direction to re-register the same after decision by Hon’ble Apex Court. After disposal by consigning the appeal to record room, the sole appellant Shyam Sundar [2025:RJ-JP:3282] (6 of 11) [CMA-2996/2023] Agarwal has expired on 31.12.2021. Now, the application was filed on 25.07.2022 by respondent-plaintiff and notice was issued on

02.11.2022 but on 23.11.2022, a report was received on notice that Shyam Sundar Agarwal has expired on 31.12.2021. The notice was replied by sister’s son of deceased. The Appellate Court on 16.12.2022 has dismissed the appeal in abatement, without noticing the fact that whether there was any legal heir to succeed the estate of deceased, who requires notice of appeal.

10. The period 31.12.2021 (date of death of appellant Shyam Sundar Agarwal), till 28.02.2022 was excluded in computing period of limitation due to Covid-19. We are reproducing Order 22 Rule 9 CPC as under:- (1) Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action. (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 dismissal; and if it is proved that he was prevented by any sufficient cause 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 915 of 1877)] 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 which constituted the cause of action in the suit which had abated or had been dismissed under this Order.]

11. Aforesaid clearly indicates that if a proceeding is abated and dismissed in abatement then with sufficient cause an application for setting aside abatement or restoration can be filed and the Court may shall set aside the abatement or dismissal upon such [2025:RJ-JP:3282] (7 of 11) [CMA-2996/2023] terms as to costs or the otherwise, as it thinks fit. The provision further provides that application under Section 5 of Limitation Act is also maintainable. The law provides for period of substitution of 90 days from date of death and in absence of same it provides for automatic abatement. An application of setting aside the order of abatement can be filed within 60 days but if there is any delay then with assistance of Section 5 of Limitation Act, delay can be condoned provided there is sufficient ground for condonation of delay.

12. Perumon Bhagvathy Devaswom Perinadu Village Vs. Bhargavi Amma (dead) by LRs and Ors. (supra) Hon’ble Supreme Court has considered Order 22 Rule 4, 5, 9 and Rule 10- A of CPC along with Article 120 and 121 of Limitation Act. In the judgment notice culled out certain provision for setting aside abatement and same is reproduced as under:- “(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 circumstances of the case, and the type of case. The words ‘sufficient cause’ in section 5 of Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bonafides, deliberate inaction or negligence on the part of the appellant. (ii) In considering the reasons for condonation of delay, the courts are more liberal with reference to applications for setting aside abatement, than other cases. While the court will have to keep in view that a valuable right accrues to the legal representatives of the deceased respondent when the appeal abates, it will not punish an appellant with foreclosure of the appeal, for unintended lapses. The courts tend to set aside abatement and [2025:RJ-JP:3282] (8 of 11) [CMA-2996/2023] decide the matter on merits, rather than terminate the appeal on the ground of abatement. (iii) The decisive factor in condonation of delay, is not the length of delay, but sufficiency of a satisfactory explanation. (iv) The extent or degree of leniency to be shown by a court depends on the nature of application and facts and circumstances of the case. For example, courts view delays in making applications in a pending appeal more leniently than delays in the institution of an appeal. The courts view applications relating to lawyer’s lapses more leniently than applications relating to litigant’s lapses. The classic example is the difference in approach of courts to applications for condonation of delay in filing an appeal and applications for condonation of delay in refiling the appeal after rectification of defects. (v) Want of ‘diligence’ or ‘inaction’ can be attributed to an appellant only when something required to be done by him, is not done. When nothing is required to be done, courts do not expect the appellant to be diligent. Where an appeal is admitted by the High Court and is not expected to be listed for final hearing for a few years, an appellant is not expected to visit the court or his lawyer every few weeks to ascertain the position nor keep checking whether the contesting respondent is alive. He merely awaits the call or information from his counsel about the listing of the appeal.”

13. Having considered the above judgment this Court in case of Dinesh Kumar And Anr. Vs. Shiv Taj Singh and Ors. (supra) has set aside the abatement and substituted the legal heirs. In case of Balwant Singh (dead) Vs. Jagdish Singh and ORs. (supra) Hon’ble Supreme Court has considered Order 22 Rule 9 CPC and Section 5 of Limitation Act and deprecated the liberal approach but observed that if the application is filed with sufficient ground or believable ground then delay cannot be condoned and [2025:RJ-JP:3282] (9 of 11) [CMA-2996/2023] the provision for order 22 Rule 9 CPC cannot be construed as to make it redundant.

14. Further, sufficient cause was explained and it implied that the presence of legal and adequate reasons. This Court has considered a similar issue in S.B. CFA No. 488/18 while passing an order on

18.04.2024 wherein application under Order 22 Rule 4 CPC were filed after a substantial delay, when the respondents expired during pendency of the civil suit whereas substitution was filed during pendency of appeal, thus the order in case of CFA No. 488/18 is not applicable in the instant case.

15. Having considered the legal position as explained by Hon’ble Supreme Court in case of Perumon Bhagvathy Devaswom Perinadu Village Vs. Bhargavi Amma (dead) by LRs and Ors. (supra) and followed by this Court in case of Dinesh Kumar And Anr. Vs. Shiv Taj Singh and Ors. (supra) we are of the view that approach of the Trial Court was hyper technical while considering the application for setting aside of abatement and substitution of LRs.

16. In view of the aforesaid, we are of the view that after filing of application on 25.07.2022 by respondent-plaintiff, if notice could not be served after death of appellant-defendant then another method is required be adopted and same may be either calling the counsel for appellant-defendant or issuing a notice upon legal heirs, in possession of suit property.

17. The defendant who was original appellant before the First Appellate Court has expired during pandemic Covid-19 and period from 20.03.2020 to February, 2022 is exempted from rigour of applicability of Limitation Act. Moreover, the appeal filed by [2025:RJ-JP:3282] (10 of 11) [CMA-2996/2023] deceased-defendant was adjourned sine die till outcome of issue pending before Hon’ble Supreme Court. In July, 2022 when an application was filed by the plaintiff-respondent apprising about decision of Hon’ble Supreme Court then the record was only summoned in November, 2022 and notice was issued to the defendant-appellant who by the time has expired. The sequence of events clearly indicate that the Appellate Court was not alive to the circumstances of the facts and circumstances of the case and it has adopted a rigid and pandetic approach while considering the application for setting aside of abatement and also condonation of delay.

18. The provisions under Order 22 CPC specifically provides for circumstances in civil proceedings in case of death, marriage and insolvency of parties. The provision of Section 5 of Limitation Act is applicable for operation of provision under Order 22 CPC. Time and again Hon’ble Supreme Court and this Court has stressed upon that litigation between the parties should be decided on merits rather terminating on technical grounds particularly during pendency of appeal. Herein, this case the approach of the Appellate Court was contrary to settled proposition of law.

19. In view of discussions made hereinabove, the instant S.B. CMA is hereby allowed and the order dated 18.09.2023 is hereby set aside and application for setting aside of abatement, condonation of delay and substitution of legal heirs are hereby allowed and legal heirs of deceased-appellant Sham Sunder Agarwal are taken on record after condonation of delay and setting aside of abatement. [2025:RJ-JP:3282] (11 of 11) [CMA-2996/2023]

20. Learned Appellate Court is directed to re-register Civil Regular Appeal No. 33/13 on Board and make all endeavours to dispose of as early as possible preferably within 3 months from date of receipt of copy of this order.

21. The parties are directed to appear before the Appellate Court on 12.02.2025.

22. Misc. appeal along with pending application(s), if any stands disposed of. MONU /200-S (ASHOK KUMAR JAIN),J