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Misc. (J) Case No.143/2018

(Arising out of T.S. No.161 of 2007)
In the Court of Munsiff No.1, Cachar, Silchar
Present: K.Goswami, AJS
Date: 10-04-2019

ORDER
Heard the learned Counsel appearing on behalf of the petitioner-legal heir.

By this order, I shall dispose of the petition Nos.837/27 filed on behalf of all the legal heirs
of the deceased sole plaintiff for their substitution in place of the deceased sole plaintiff by
condoning delay from which the instant Misc. (J) case has arisen.

It is stated in the above petition that the plaintiff of the suit Abdul Quddus Mazumder died
on 18-04-2018 leaving behind his heirs. The name of all the legal heirs are necessary to be
substituted in plaint in place of the Abdul Quddus Mazumder by as plaintiff as mentioned in
the Schedule. There has been a delay of more than 106 days and as such the suit is abated
on 16-07-2018. The order of abatement needs to be set-aside as the reason for the delay is
ailments of the petitioner, who is looking after the case on the death of his father. The
medical certificate in support of his ailments is submitted with the petition.

The contesting defendants resisted the above petition. It is stated that the delay has not
been properly explained by the petitioners and as such the abatement cannot be legally
set-aside. The petition under objection is not maintainable under Order 22 Rule 3 of the
CPC read with Order 6 Rule 17 of the CPC. No separate petition under Section 5 of the
Limitation Act for condonation of delay has been submitted and as such the petition is liable
to be rejected.

I heard the learned counsel for the petitioner on the above petition. The other defendants
did not appear for hearing.

Admittedly, the sole plaintiff died on 18-04-2018 and the petition for substitution was filed
on 01-08-2018. Hence, it is evident that the suit of the plaintiff had abated due to non-
substitution of his legal heirs/representatives within the prescribed period of 90 days as
envisaged under Article 120 of the Limitation Act. Now, therefore, what is to be seen is

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whether or not the petitioner/legal heirs have made out grounds for setting aside the
abatement and their consequent substitution in place of the deceased plaintiff as being the
legal heirs. Hence, before delving into the merits of the present petition, it is necessary to
examine the legal provisions embodied in Rule 9 of Order 22 of CPC which governs setting
aside of abatement of suit.

Rule 9 of Order 22 CPC deals with the effect of abatement. On a plain reading of the
provision, it becomes apparent that where a suit abates under Order 22, no fresh suit can
be brought on the same cause of action. This provision also enables the plaintiff or the
legal heirs of the deceased plaintiff to move an application for setting aside the abatement;
and if it is proved that he was prevented by any sufficient cause from continuing the suit,
then, the Court is empowered to set aside the abatement. The provision for condonation of
delay as envisaged under Section 5 of the Limitation Act shall apply to such application.

Article 120 of the Limitation Act, 1963 prescribes a period of 90 days to substitute the legal
representative of a deceased party. Such period of 90 days is to be computed from the date
of death of the said party. An application for substitution of the legal representative must
be filed within the said period in compliance with the procedure mentioned in Order 22 of
CPC. Section 5 of the Limitation Act, on the other hand, enables the Court to condone the
delay in making such application if the applicant satisfies the Court that he had sufficient
cause for not making the said application with the period of limitation.

In so far as condonation of delay is concerned, the Hon’ble Supreme Court in

N.Balakrishnan v. M.Krishnamurthy reported in (1998) 7 SCC 123 has held that
condonation of delay is matter of discretion of the Court. Section 5 of the Limitation Act
does not say that such discretion can be execised only if delay is within a certain limit.
Length of delay is no matter, acceptability of the explanation is the only criterion.
Sometimes delay of the shortest range may be uncondonable due to a want of acceptable
explanation whereas in certain other cases, delay of a very long range can be condoned as
the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient,
it is the result of positive exercise of discretion….

(Emphasis is added)

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In the above context, I may make a reference to a decision rendered by the Hon’ble
Supreme Court in Ram Nath Sao v. Gobardhan Sao, (2002) 3 SCC 195, wherein the
Hon’ble Apex Court observed as under:

“12. Thus it becomes plain that the expression “sufficient cause” within the meaning of
Section 5 of the Act or Order 22 Rule 9 of the Code or any other similar provision should
receive a liberal construction so as to advance substantial justice when no negligence or
inaction or want of bona fides is imputable to a party. In a particular case whether
explanation furnished would constitute “sufficient cause” or not will be dependent upon
facts of each case. There cannot be a straitjacket formula for accepting or rejecting
explanation furnished for the delay caused in taking steps. But one thing is clear that the
courts should not proceed with the tendency of finding fault with the cause shown and
reject the petition by a slipshod order in over-jubilation of disposal drive. Acceptance of
explanation furnished should be the rule and refusal, an exception, more so when no
negligence or inaction or want of bona fides can be imputed to the defaulting party. On the
other hand, while considering the matter the courts should not lose sight of the fact that by
not taking steps within the time prescribed a valuable right has accrued to the other party
which should not be lightly defeated by condoning delay in a routine-like manner. However,
by taking a pedantic and hypertechnical view of the matter the explanation furnished
should not be rejected when stakes are high and/or arguable points of facts and law are
involved in the case, causing enormous loss and irreparable injury to the party against
whom the lis terminates, either by default or inaction and defeating valuable right of such a
party to have the decision on merit. While considering the matter, courts have to strike a
balance between resultant effect of the order it is going to pass upon the parties either
way.”
(Emphasis is added)

Now on the aspect of non-filing a separate petition for condonation of delay, the Hon’ble
Apex Court in K. Rudrappa v. Shivappa, (2004) 12 SCC 253 held that “in our opinion,
the learned counsel for the appellant is right in submitting that a hypertechnical view ought
not to have been taken by the District Court in rejecting the application inter alia observing

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that no prayer for setting aside abatement of appeal was made and there was also no
prayer for condonation of delay.”

Being mindful of the aforesaid legal position, in the present case, the petitioner, namely,
Nazrul Islam Mazumder has submitted medical certificate dated 28-07-2018 in the Court
which clearly shows that he had been suffering from Grade-I bleeding hemorrhoids and
backache in the relevant period.

Having considered the materials on record and the circumstances narrated by the
petitioner, I am of the considered opinion that the he has satisfactorily explained the delay
caused in filing the petition for substitution. As held by the Hon’ble Supreme Court in
N.Balakrishnan (supra) , length of delay is no matter, acceptability of the explanation is
the only criterion. Further, it is well-settled that no separate application for condonation of
delay is required. In this view of the matter, I am willing to allow the present petition. The
petition No. 837/27 is accordingly allowed. The abatement of the suit is hereby set aside
and the legal heirs of the deceased plaintiff are substituted in his place.

The Dealing Assistant is to amend the plaint as per the schedule of the petition No.837/27.

With the aforesaid direction, the instant Misc. (J) Case stands disposed of as being allowed
on contest. No costs.

K. Goswami, AJS

Munsiff No.1, Cachar, Silchar

Misc. (J) Case No.143 of 2018