2025:HHC:23687 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CR No. 193 of 2024 Reserve on: 04.07.2025 Date of decision : 22.07.2025 Shri Virender Speya ...Petitioner Versus Sh. Anshul Katoch and others ...Respondents Coram: The Hon’ble Mr. Justice Satyen Vaidya, Judge. Whether approved for reporting?1 Yes For the petitioner : Mr. G.D. Verma Senior Advocate with Mr. Sumit Sharma, Advocate. For the respondents : Mr. N.D. Sharma, Advocate. Satyen Vaidya, Judge: The instant Revision petition has been filed against order dated 21.11.2024 passed by learned District Judge (Forest) Shimla in Civil Miscellaneous Petition No. 90019 of 2019. 2. Brief facts necessary for adjudication of petition are that predecessor in interest of respondents herein namely Sh. Man Chand Katoch (hereinafter referred to as the plaintiff) filed Civil Suit No. 4025 of 2013 against petitioner herein Sh. Virender Speya (hereinafter referred 1 Whether reporters of Local Papers may be allowed to see the judgment? -2- 2025:HHC:23687 to as the defendant) for decree of specific performance of agreement to sell dated 13.03.1997. The suit was filed in this Court on the basis of the then prevailing pecuniary jurisdiction. 3. Plaintiff died on 23.05.2018 and at that stage the final arguments in the suit had not been concluded. 4. Though the right to sue survived in favour of respondents herein (hereinafter referred to as the applicants) being legal representatives of deceased plaintiff but no steps were taken either by informing the court about death of plaintiff or by bringing on record the legal representatives. 5. The Civil Suit was finally heard by the court on 27.6.2018 and judgment was pronounced on 13.7.2018 whereby a decree was passed in favour of the plaintiff. 6. The applicants filed an application under Order 22 Rules 3 and 9 read with Section 151 of the Code of Civil Procedure and Section 5 of the Limitation Act on 27.03.2019 in the original suit before Learned District Judge (Forest) Shimla as the pecuniary jurisdiction to try -3- 2025:HHC:23687 the suit by that time had shifted from this court to the court of District Judge. 7. It was averred in the application that the applicants were not aware about the pendency of Civil Suit No. 4025 of 2013. After death of plaintiff, while searching for his papers, the applicants came to know about the pendency of the suit. They then contacted the counsel representing the plaintiff, who disclosed that the suit had already been decreed in favour of plaintiff on 13.07.2018. Thereafter, the applicants handed over the Legal Heir Certificate to the counsel, who filed a Caveat Petition in this Court in the name of applicants in the month of August, 2018. 8. It was also alleged that the defendant had filed OSA (Original Side Appeal) No. 5 of 2018 before this Court. The OSA was listed along with the Caveat Petition. The Caveat was allowed. The OSA was finally disposed of by a Division Bench of this Court on 26.02.2019 and the matter was remitted back to the original Court for decision afresh in accordance with law. -4- 2025:HHC:23687 9. As per the applicants they could not file the application earlier as it had taken some time for them to contact their counsel and proceed in the matter after collecting the Death Certificate as well as Legal Heir Certificate from the concerned authorities. 10. The application was contested by the defendant. It was submitted that the composite application under order 22 rules 3 and 9 CPC and section 5 of Limitation Act was not maintainable. The applicants had not approached the Court with clean hands and were estopped to file the application on account of their own acts, deeds, conduct, lapses, etc. It was alleged that the applicants were aware about the filing of the suit and from the contents of the application no ground much less sufficient ground for condonation of delay and setting aside the abatement was made out. 11. I have heard learned counsel for parties and have also gone through the record. 12. The facts with respect to the date of death of plaintiff, the date of hearing in the suit and date on which decree was passed are not in dispute. -5- 2025:HHC:23687 13. The reason assigned by the applicants for not filing the application in time was that they were not aware of the pendency of the suit. In the application filed by applicants, it was clearly averred that they had come to know about the pendency of the suit in the end of July, 2018 and thereafter they had contacted the counsel. 14. Thus, the date of knowledge of applicants with respect to filing of suit by their predecessor can assumingly be taken as 31st July, 2018. 15. The limitation as per Article 120 of the Limitation Act for bringing on record legal representatives of deceased plaintiff was 90 days. Once, the period of 90 days expired without bringing on record the legal representatives, the suit filed by plaintiff automatically abated. 16. The limitation for getting the abatement set aside as per Article 121 of the Limitation Act was further 60 days from the date of abatement. Once this period also expired, the delay in getting the abatement set aside had to be got condoned in the first instance, meaning thereby that the respondents for seeking such relief had to show -6- 2025:HHC:23687 sufficient cause for not being able to get the abatement set aside within the period of limitation. 17. What only had been tried to be explained in the application filed by the applicants was the factum of their being unaware about the pendency of the litigation. However, there was no explanation as to why did they not file the application in the suit for bringing on record legal representatives of deceased plaintiff, when they had acquired the knowledge in the last week of July, 2018. Further, there is no explanation whatsoever as to what prevented them from filing application after last week of July, 2018 till 27.03.2019. 18. Learned District Judge has allowed the application on the premise that after the decision in the suit, there was no option for the applicants to move application for bringing on record legal representatives of deceased plaintiff, before the court that had passed the decree. It has been held that since, the applicants had filed Caveat Petition before this Court and had disclosed the factum of death of deceased plaintiff hence, they cannot be accused to have hidden any material fact. As per learned -7- 2025:HHC:23687 District Judge, since the applicants had filed the application immediately after remand of the matter, they could not be said to have committed any intentional act in not disclosing the death of factum of plaintiff. 19. The premise adopted by learned District Judge is specious. The decree dated 13.07.2018 in Civil Suit No. 4025 of 2013 was a nullity having been passed in favour of a dead person and thus, it could not be considered to have decided the suit. It was as good as no decree. There was no legal impediment for the applicants to approach the original court with the requisite application for bringing them on record as legal representatives of deceased plaintiff. Hence, learned District Judge was incorrect in holding that after passing of the judgment dated 13.07.2018, the applicants had no occasion to file the application before the original Court. 20. Once, in the last week of July 2018 the applicants had come to know about the passing of judgment and decree in the suit filed by plaintiff, there was no hindrance for them to file the application for bringing on record the legal representatives of deceased plaintiff. -8- 2025:HHC:23687 They instead chose to file a Caveat Petition in this Court with the averments that they were expecting filing of appeal by the petitioner herein and trying to obtain ex-parte interim order. 21. The appeal i.e. OSA No. 5 of 2018 was filed by the defendant by impleading Sh. Man Singh Katoch as respondent/plaintiff. On 12.09.2018 learned counsel had marked his presence for the respondent in the appeal and at that stage, the applicants were not the respondents. The appeal was admitted on 10.10.2018 and an order was passed to issue post-admission notice to the respondent i.e. Sh. Man Chand Katoch and on that date also learned counsel had waived notice and appeared. 22. Thereafter, the OSA No. 5 of 2018 was listed on 16.11.2018 when none appeared for the respondent therein and it was recorded on the basis of submission made by learned counsel for the appellant Sh. Virender Speya that as per the information gathered from the caveat petition, the respondent/plaintiff had died during the pendency of the suit before learned Single Judge. -9- 2025:HHC:23687 23. On the next date of hearing in OSA 5 of 2018 i.e. 08.01.2019 appearance for the applicants was recorded by the counsel, who had earlier been representing the plaintiff. He was directed by the Court to place on record the Death Certificate of deceased respondent/plaintiff. Thereafter, on 26.02.2019, the OSA was disposed of by setting aside the judgment and decree dated 13.07.2018 being a nullity and the matter was remitted to original Court for decision afresh after deciding the question of abatement of the proceedings, if any. 24. The defendant cannot be faulted for having filed OSA against a dead person as he was not aware about the death of plaintiff till the date of filing. 25. The applicants instead of filing the Caveat Petition and continuing with the proceedings in the OSA could have filed the application for bringing them on record of Civil Suit No. 4025 of 2013. Neither the applicants fulfilled their obligation by taking steps for representation of deceased plaintiff within the time prescribed under Article 120 of the Limitation Act nor were the steps taken for setting aside the abatement within the time prescribed -10- 2025:HHC:23687 under Article 121 of the Limitation Act. Even thereafter, the applicants waited for more than five months to file the application and except for the explanation that the OSA was pending and the applicants had filed caveat, nothing had been pleaded or proved as to what prevented the applicants from taking steps within time. 26. In the aforesaid factual backdrop, there is no hesitation to hold that the applicants had not rendered any explanation whatsoever for not being able to file the application for setting aside abatement before 27.03.2019. 27. Further it can also be seen that one of the legal representatives of deceased Plaintiff namely Ms. Poonam Thakur appeared as witness to prove the case of applicants. Her deposition faintly pointed out as if the action of applicants was based on advice received by them. The relevant extract of her examination in chief filed by way of affidavit is being reproduced as under: “5. That the deponent and other legal heirs of Late Shri Man Chand Katoch who have moved application for condonation of delay and setting aside of abatement in the suit were under bonafide wrong impression and advice that the matter regarding the substitution of legal heirs would be decided by the -11- 2025:HHC:23687 Hon’ble Division Bench, where OSA No. 5/2018 was pending, as appellant/defendant had moved an application in OSA and for this reason, on account of bonafide erroneous impression on the basis genuine legal advice received by the applicant, they did not file the application in the suit for setting aside abatement and substitution of legal representatives, as the matter was pending before the Hon’ble Division Bench. It is a case of bonafide and genuine error/mistake of judgment with respect to legal position qua filing of application on the part of learned Counsel handling the case. It is a case of genuine and bonafide error of judgment in the facts of the case, as the matter was pending in appeal before the Hon’ble Division Bench including the matter with respect to substitution of legal representatives of the deceased.” 28. While facing cross examination, the above witness, had stated that she was not aware as to who had advised applicants to file Caveat Petition. In the very next sentence, she had deposed that the Counsel was instructed to file Caveat Petition with the approval of the applicants. She further failed to remember that the applicants were advised by Counsel not to file the Caveat Petition. 29. Thus, the version introduced by Ms. Poonam Thakur in her examination in chief cannot help the cause -12- 2025:HHC:23687 of the applicants for the reasons firstly, that no such averment was made in the application and secondly, such stand stood completely demolished by the cross examination of the sole witness of the applicants. 30. Learned Counsel for the applicants would submit that the court of first instance had taken a reasonable view in the given facts and such view should not be disturbed. He has placed reliance on the judgments passed by Hon’ble Supreme Court in N. Balakrishnan v. M. Krishnamurthy [(1998) 7 SCC 123] wherein it has been held as under: “9. ….. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammelled by the conclusion of the lower court.” 31. The above exposition cannot be used by the applicants to further their cause; as the learned District -13- 2025:HHC:23687 Judge has proceeded to condone the delay by citing the pendency of OSA 5/2018 as the only reason. The view taken by learned District Judge that the application could not have been filed in a decided matter or due to pendency of appeal has already been held by me to be untenable; for there was no legal bar. Further, the learned District Judge has also ignored a very material aspect as had emerged from the deposition of Ms. Poonam Thakur, which in my considered view clearly reflected lack of bonafide in the conduct of the applicants. 32. Learned Counsel for legal representatives then argued that the court should take liberal view in the matter of condonation of delay. He placed reliance on judgments passed by Hon’ble Supreme Court in Ram Nath Sao v. Gobardhan Sao, (2002) 3 SCC 195; Mithailal Dalsangar Singh v. Annabai Devram Kini, (2003) 10 SCC 691; Bhag Mal v. Munshi, (2007) 11 SCC 285 : 2007 SCC; N. Balakrishnan v. M. Krishnamurthy, (1998) 7 SCC 123; Kailash v. Nanhku, (2005) 4 SCC 480. -14- 2025:HHC:23687 33. There cannot be any dispute with the proposition of law as canvassed on behalf of the legal representatives, however, what is material is whether the applicants have been able to prove existence of facts warranting invocation of aforesaid principles? In my view, the answer is in negative. Not only the applicants have been found to have not shown any cause much less the sufficient cause for condonation of delay, their conduct also becomes suspicious for taking different stands at different stages and further having failed to substantiate or establish the same. 34. The liberal approach cannot be taken to mean that the court has not to consider and examine the attending circumstances to find out the genuineness and bonafide of the claim. No one can claim immunity from rigors of law. The guiding principle is that in genuine and bonafide claims the court can exercise discretion favouring the party involved in unintentional abrasions of procedural aspects. -15- 2025:HHC:23687 35. In Maniben Devraj Shah vs. Municipal Corporation of Brihan Mumbai, 2012 (5) SCC 157, the Hon’ble Supreme Court has held as under:- “23. What needs to be emphasised is that even though a liberal and justice oriented approach is required to be adopted in the exercise of power under Section 5 of the Limitation Act and other similar statutes, the Courts can neither become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time is consumed at various stages of litigation apart from the cost. 24. What colour the expression “sufficient cause” would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the Court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay”. 36. In Brahampal @ Sammay & another vs. National Insurance Company, 2021 (6) SCC 512, the following exposition has been made:- -16- 2025:HHC:23687 “22. Undoubtedly, the statute has granted the Courts with discretionary powers to condone the delay, however at the same time it also places an obligation upon the party to justify that he was prevented from abiding by the same due to the existence of “sufficient cause”. Although there exists no strait jacket formula for the Courts to condone delay, but the Courts must not only take into consideration the entire facts and circumstances of case but also the conduct of the parties. The concept of reasonableness dictates that, the Courts even while taking a liberal approach must weigh in the rights and obligations of both the parties. When a right has accrued in favour of one party due to gross negligence and lackadaisical attitude of the other, this Court shall refrain from exercising the aforesaid discretionary relief”. 37. In Pathapati Subba Reddy (died) by LRs & others vs. The Special De)puty Collector (LA), 2024 SCC online SC 513, it has been held as under:- “18. This Court as far back in 1962 in the case of Ramlal, Motilal And Chhotelal vs. Rewa Coalfields Ltd3 has emphasized that even after sufficient cause has been shown by a party for not filing an appeal within time, the said party is not entitled to the condonation of delay as excusing the delay is the discretionary jurisdiction vested with the court. The court, despite establishment of a ‘sufficient cause’ for -17- 2025:HHC:23687 various reasons, may refuse to condone the delay depending upon the bona fides of the party. 19. In Maqbul Ahmad and Ors. vs. Onkar Pratap Narain Singh and Ors.4, it had been held that the court cannot grant an exemption from limitation on equitable consideration or on the ground of hardship. The court has time and again repeated that when mandatory provision is not complied with and delay is not properly, satisfactorily and convincingly explained, it ought not to condone the delay on sympathetic grounds alone”. 38. Recently in Cr.M.P (M) No. 1872 of 2024 titled Dropti Devi Vs Govind Ram decided on 26.05.2025, a division bench of this Court while interpreting the scope of condoning the delay in legal proceedings has held as under: 9. However, at the same time, the Court is also required to see whether there are lack of bona fides imputable to a party seeking condonation of delay. It has also to take into consideration the conduct, behaviour and attitude of a party relating to its inaction or negligence while approaching the Court. It has further to be ensured that the concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play because there is increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical High propensity can be -18- 2025:HHC:23687 exhibited in a non-challant manner, which requires to be curbed, of course, within the legal parameters. This legal position is succinctly expounded in the judgment of the Hon’ble Supreme Court in Esha Bhattacharjee vs. Managing Committee of Raghunathpur Nafar Academy 2013 (12) SCC 649, wherein while interpreting the provisions of Section 5 of the Limitation Act regarding condonation of delay the principles applicable thereto were summarised as follows:- (i) There should be a liberal, pragmatic, justice oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice. (ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis. (iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of. -19- 2025:HHC:23687 (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. (vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice. (vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play. (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation. (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach. (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation. -20- 2025:HHC:23687 (xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation. (xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception. xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude. 16. To the aforesaid principles we may add some more guidelines taking note of the present-day scenario. They are: - (a) An application for condonation of delay should be drafted with careful concern and not in a half hazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system. (b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective. (c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving -21- 2025:HHC:23687 consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto. (d) The increasing tendency to perceive delay as a non serious matter and, hence, lackadaisical propensity can be exhibited in a non-challan manner requires to be curbed, of course, within legal parameters. 39. The applicants in the facts of the case in hand have failed to clear the qualifying mark. Their conduct has not been found to be bonafide. 40. In light of above discussion, the petition is allowed. Order dated 21.11.2024 passed by learned District Judge (Forest) Shimla in Civil Miscellaneous No. 90019 of 2019 is set aside and the application of the respondents herein filed under Order 22 Rules 3 and 9 read with Section 151, CPC and Section 5 of Limitation Act is dismissed. Pending applications, if any, also stand disposed of. (Satyen Vaidya) 22nd July, 2025 Judge (Vriti)