TaxTMI 
TaxTMI 
2009 (4) TMI 904
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....tween them arose in relation to user of a lane. Appellants claim that they were entitled to use the passage in exercise of their right of easement. They purchased some property including the 1/12th right of the vendors in the disputed suit land on or about 6.11.1985. Prior thereto, they were said to have been enjoying an easmentary right thereover. 4. Respondent filed a suit in the Court of Principal District Munsif, Ramachandrapuram on or about 27.12.1985 praying, inter alia, for a decree for grant of mandatory injunction as also a decree for permanent injunction against the appellants restraining them from using the land in dispute. The said suit was dismissed by the learned Trial Judge by a judgment and decree dated 15.6.1993. 5. Respondent preferred an appeal thereagainst. The Subordinate Judge, Ramachandrapuram allowed the said appeal by a judgment and decree dated 22.11.1996 holding that they being the owners of the land in suit, were entitled to a decree for mandatory as also permanent injunction. 6. Appellant approached the High Court in the year 1997 aggrieved by and dissatisfied with the said judgment and decree of the First Appellate Court by preferring a second appea....
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....th and not from the date of knowledge thereabout, the High Court must be held to have correctly determined the issue before it. 9. Before adverting to the rival contentions of the parties, as noticed hereinbefore, we may notice the relevant provisions of the Code of Civil Procedure. Order XXII of the Code provides for the consequences arising out of death, marriage and insolvency of parties. Rule 1 thereof provides that the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives. Rule 2 lays down the procedure where one of several plaintiffs died and the right to sue survives. Order XXII Rule 3 lays down the procedure in case of death of one of the several plaintiffs or sole plaintiff for bring on record the heirs and legal representatives of a deceased plaintiff or one of the plaintiffs, an application is required to be filed within the period prescribed therefor. The period prescribed for such an application indisputably is 90 days. Sub-rule 2 of Rule 3 of Order XXII provides for the consequences of not filing such an application, that is, that the suit shall abate so far as the deceased plaintiff is concerned. A similar procedure has b....
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....rely on the provisions of Order XXII Rule 10A of the Code of Civil Procedure, which was inserted by reason of Code of Civil Procedure (Amendment) Act, 1976. It does not, however, provide for consequences. It does not take away the duty on the part of the plaintiff or the appellant, as the case may be, to file an application for condonation of delay in bringing on record the heirs and legal representatives of a deceased plaintiff/appellant or defendant/respondent within the period prescribed. In Union of India v. Ram Charan & Ors. [(1964) 3 SCR 467], a Three Judge Bench of this Court, held : "... Of course, the Court, in considering whether the appellant has established sufficient cause for his not continuing the suit in time or for not applying for the setting aside of the abatement within time, need not be over-strict in expecting such proof of the suggested cause as it would accept for holding certain fact established, both because the question does not relate to the merits of the dispute between the parties and because if the abatement is set aside, the merits of the dispute can be determined while, if the abatement is not set aside, the appellant is deprived of his proving hi....
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.... ordinarily expected and, therefore, not only provided a further period of two months under art. 176 for an application to set aside the abatement of the suit but also made the provisions of s. 5 of the Limitation Act applicable to such applications. Thus the plaintiff is allowed sufficient time to make an application to set aside the abatement which, if exceeding five months, be considered justified by the Court in the proved circumstances of the case. It would be futile to lay down precisely as to what considerations would constitute 'sufficient cause' for setting aside the abatement or for the plaintiff's not applying to bring the legal representatives of the deceased defendant on the record or would be held to be sufficient cause for not making an application to set aside the abatement within the time prescribed. But it can be said that the delay in the making of such applications should not be for reasons which indicate the plaintiff's negligence in not taking certain steps which he could have and should have taken. What would be such necessary steps would again depend on the circumstances of a particular case and each case will have to be decided by the Court ....
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....eal. The appeal was a continuation of a suit. The appellants herein could not thus, have been held to be aware of the fact that during the pendancy thereon Bansi would die or the appeal shall abate. Let us consider a hypothetical situation. An appeal abates after three years of the judgment and decree passed by the first appellate court and in that situation the appellant would have no chance to reap the benefit thereof, if the submission of the learned counsel appearing on behalf of the respondent is accepted. The law in our opinion, cannot be construed in a manner which would defeat the ends of justice" Reliance has also been placed on a recent decision of this Court in Perumon Bhagwathy Devaswom, Perinadu Village v. Bhargavi Amma (Dead) by LRs & Ors. [(2008) 8 SCC 321]. Raveendran J, speaking for the Bench, upon noticing a large number of decisions, held : "9. This Court also made some observations in Ram Charan (Supra) about the need to explain, in addition to alleging that the plaintiff/appellant not being aware about the death, the reasons for not knowing about the death within a reasonable time. Those observations have stood diluted in view of subsequent insertion of sub-r....
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....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." Having said so, the learned Judge referred to some factors which would have a bearing for the purpose of determining 'sufficient cause', in particular, where a regular suit is pending vis-à-vis an appeal is pending before a High Court, stating : "In contrast, when an appeal is pending in a High Court, dates of hearing are not fixed periodically. Once the appeal is admitted, it virtually goes into storage and is listed before the court only when it is ripe for hearing or when some application seeking an interim direction is filed. It is common for appeals pending in High Courts not to be listed at all for several years. (In some courts where there is a huge pendency, the non-hearing period may be as much as 10 ye....