Section 5 Of Limitation Act Guards Against Abatement Under Order XXII CPC When Delay Is Neither Wanton Nor Deliberate: Telangana High Court

The order was passed by a division bench of Justice Moushumi Bhattacharya and Justice Nagesh Bheemapak in an interlocutory application filed to bring the legal heirs of a deceased respondent on record and set aside the abatement caused due to non-impleading of the applicants at an earlier stage. The court said:

“The primary function of a Court is to adjudicate upon the dispute between the parties and to advance substantial justice; the Rules of limitation are not meant to destroy the rights of the parties. In essence, a suit or appeal should not be foreclosed for unintended lapses as there can be no presumption on the lack of bona fides in approaching the Court with an application for condonation of delay. The Court should bear in mind that refusal to condone delay, which is not wanton or deliberate, would result in foreclosing the case of a plaintiff or a defendant in arguing the matter on merits. Any lapse on the part of a litigant should be construed within a broader framework of the facts and the law so that the litigant is not ousted from the Courts.”

In the case at hand, the plaintiff passed away after a decree was issued but before the appeal process began. The legal heirs sought to be added as parties to the appeal, but their application was delayed significantly. The court delved into the provisions of Order XXII of the Code of Civil Procedure (CPC), which deals with the death of parties and its effect on suits, and Order XXII Rule 9, which addresses the setting aside of abatement. The court also examined Section 5 of the Limitation Act, which allows for condonation of delay if sufficient cause is shown.

The court considered the reasons provided by the legal heirs for the delay, which included personal difficulties such as the COVID-19 pandemic, age-related ailments, and the death of family members. It also noted that the legal heirs had promptly informed the appellants about the plaintiff's death, but the appellants did not take action for their impleadment.

Given these factors and the principle of substantial justice, the court exercised its discretion to condone the delay. The court found the legal heirs' explanation met the "sufficient cause" requirement under the Limitation Act, allowing them to be added as parties to the appeal.

Additionally, the Court noted that the appellants were made aware of the death of the respondent and despite the same, failed to take steps for impleadment.

Relying on Perumon Bhagvathy Devaswom Perinadu Village v. Bhargavi Amma and In Rangubai Kom Shankar Jagtap v. Sunderabai Bhratar Sakharam Jedhe the Court noted:

“The above factors persuade the Court to allow the applications filed by the legal representatives of the respondent No.8. The decision is based not only on the law which essentially underscores a benevolent approach but also the facts of the case.”

Thus the applications were allowed.

in C.C.C.A.No.70 of 2018 (IAs 1, 2 &3 of 2024)

Counsel for petitioner: O Manoher Reddy

Counsel for respondents: C Rakee Sridharan