[2025:RJ-JP:1284] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Miscellaneous Appeal No. 3388/2017 Bhim Singh Choudhary S/o Sh. Sahab Singh @ Sohan Singh, Village Takha, Police Station Kumher, Distt. Bharatpur Raj. ----Appellant Versus 1. Biri Singh S/o Sh. Chhingaram, Daulatgarh, Tehsil Roopwas, Distt. Bharatpur At Present Employee C/o - M/s Anubhav Enterprises, G-135, Malviya Industrial Area, Distt. Jaipur Raj. Driver Of Truck No. Rj-14-Gb-5300 2. M/s Anubhav Enterprises, G-135, Malviya Industrial Area, Distt. Jaipur Owner Of Truck No. Rj-14-Gb-5300 3. The New India Assurance Company Limited, Nehru Palace, Tonk Road, Jaipur- 302015 Through Senior Divisional Manager Insurance Company Of Truck No. Rj- 14-Gb-5300 ----Respondents For Appellant(s) : Mr. Kamal Gupta For Respondent(s) : Mr. Ram Singh Bhati HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Order 07/01/2025 1. Instant Civil Misc. Appeal is preferred by appellant-claimant (injured) dissatisfied from award dated 24.04.2017 in MAC Case No. 183/2013 (1593/2008) passed by MACT (ADJ), No.4, Jaipur District, Jaipur in a petition under Sections 166 and 140 of MV Act. 2. During pendency of this petition, claimant has expired on 23.11.2017 and an application under Order XXII Rule 3 CPC was filed on 07.08.2024 for taking legal heirs of appellant claimant- Bhim Singh on record. An application dated 07.09.2022 was also filed under Order XXII Rule 9 read with Section 151 CPC for setting aside of abatement and continuing the instant appeal. [2025:RJ-JP:1284] (2 of 7) [CMA-3388/2017] 3. Learned counsel for appellant-claimant while relying upon judgment in case of Oriental Insurance Company Ltd. Vs. Kahlon @ Jasmail Singh Kahlon Civil Appeal No. 4800/2021 reported as AIR 2021 SC 3913 submitted that even after death of claimant, the legal heirs of deceased can pursue claim petition under the MV Act. He submits that the legal heirs are entitled for substitution and they have filed an application for substitution. 4. A perusal of record indicate that dissatisfied claimant has filed instant civil misc. appeal for enhancement from award dated 24.04.2017. The Tribunal has awarded a claim of ₹3,40,440/- with interest to claimant for injuries sustained by him in an accident on dated 04.05.2008. 5. On 31.07.2020, a Coordinate Bench of this Court has noted statement of counsel for appellant that claimant-appellant has expired. Afterwards, an application under Order XXII Rule 9 CPC was filed on 07.09.2022. Thereafter, application under Order XXII Rule 3 CPC was filed on 07.08.2024. 6. As per admitted fact, the claimant has expired on 23.11.2017 and till 31.07.2020, no application was filed by any of legal heirs. The application was filed only on 07.08.2024. 7. There is no procedure to file application under Order XXII Rule 9 CPC read with Section 151 CPC with prayer to set aside abatement without simultaneous pray to bring legal heirs on record. An attempt was made to continue instant appeal by any means. After death of claimant on 23.11.2017, information was given only 31.07.2020 and first application was filed on 07.09.2022 whereas second on 07.08.2024. [2025:RJ-JP:1284] (3 of 7) [CMA-3388/2017] 8. Office is required to remain vigilant when it is informed that appellant has expired and if, no application is filed within 90 days of such information then same should be listed immediately for orders before the Court. Herein, the appeal was not listed till 13.10.2023. 9. As per law, after death of sole appellant-claimant on 23.11.2017, appeal stands abated automatically on 91st day of his death. The abatement is an automatic process. After abatement, an application for setting aside of abatement can be filed within 60 days along with prayer to bring legal heirs of appellant on record. 10. There was a delay of nearly six years and four months, but no application under Section 5 of Limitation Act is filed explaining the delay. No Court can condone delay, unless there is a prayer showing sufficient cause. 11. Section 5 of the Limitation Act prescribes that any appeal or revision or an application may be admitted after the prescribed period, if the appellant or the petitioner satisfies the Court on sufficient cause for not preferring an appeal or revision or making an application within prescribed period. 12. In case of Collector, Land Acquisition, Anantnag Vs. Katiji AIR 1987 SC 1353, Hon’ble Supreme Court laid down the following principles to allow application under Section 5 of the Limitation Act:- 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is [2025:RJ-JP:1284] (4 of 7) [CMA-3388/2017] that a cause would be decided on merits after hearing the parties. 3. "Every days delay must be explained" does not mean that a pedantic approach should be made. Why not every hours delay. every seconds delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. 13. In case of Balwant Singh (dead) Vs. Jagdish Singh and Ors. 2010 (8) SCC 685, Hon’ble Supreme Court while considering Section 5 of Limitation Act has referred the judgment in the case of Union of India Vs. Ram Charan AIR 1964 SC 215 and observed that the explained delay should be clearly understood in contradistinction to inordinate unexplained delay. Delay is just one of the ingredients which has to be considered by the Court. In addition to this, the Court must also take into account the conduct of the parties, bona fide reasons for condonation of delay and whether such delay could easily be avoided by the applicant acting with normal care and caution. The statutory provisions mandate that applications for condonation of delay and applications belatedly filed beyond the prescribed period [2025:RJ-JP:1284] (5 of 7) [CMA-3388/2017] of limitation, should be rejected unless sufficient cause is shown for condonation of delay. The larger benches as well as equi- benches of Hon’ble Supreme Court have consistently followed these principles and have either allowed or declined to condone the delay in filing such applications. Thus, it is the requirement of law that these applications cannot be allowed as a matter of right and even in a routine manner. An applicant must essentially satisfy the above stated ingredients; then alone the Court would be inclined to condone the delay. 14. In the case of Brijesh Kumar & Ors. v. State of Haryana & Ors.: (2014) 13 SCC 291, while referring the judgment of Esha Bhattacharjee v. Raghunathpur Nafar Academy & Ors.: (2013) 12 SCC 649, Hon'ble Supreme Court has laid down that sufficient cause is a condition precedent for exercise of discretion by the Court for condonation of delay. The Supreme Court further observed that the Court cannot condone the delay, if it is not properly, satisfactorily and convincingly explained, and a delay cannot be condoned on sympathetic grounds. 15. Very recently condonation of delay under Section 5 of Limitation Act was considered by Hon’ble Supreme Court in case of P. Subba Reddy (died) by LRs. And Ors. Vs. Special Deputy Collector (LA) 2024 INSC 286 wherein also it was held that unless sufficient cause is shown the application under Section 5 of Limitation Act cannot be allowed. The underlying provisions after harmonious construction of provision of law were formulated in following manner:- [2025:RJ-JP:1284] (6 of 7) [CMA-3388/2017] (i) Law of limitation is based upon public policy that there should be an end to litigation by forfeiting the right to remedy rather than the right itself; (ii) A right or the remedy that has not been exercised or availed of for a long time must come to an end or cease to exist after a fixed period of time; (iii) The provisions of the L imitation Act have to be construed differently, such as Section 3 has to be construed in a strict sense whereas Section 5 has to be construed liberally; (iv) In order to advance substantial justice, though liberal approach, justice-oriented approach or cause of substantial justice may be kept in mind but the same cannot be used to defeat the substantial law of limitation contained in Section 3 of the Limitation Act; (v) Courts are empowered to exercise discretion to condone the delay if sufficient cause had been explained, but that exercise of power is discretionary in nature and may not be exercised even if sufficient cause is established for various factors such as, where there is inordinate delay, negligence and want of due diligence; (vi) Merely some persons obtained relief in similar matter, it does not mean that others are also entitled to the same benefit if the court is not satisfied with the cause shown for the delay in filing the appeal; (vii) Merits of the case are not required to be considered in condoning the delay; and (viii) Delay condonation application has to be decided on the parameters laid down for condoning the delay and condoning the delay for the reason that the conditions have been imposed, tantamount to disregarding the statutory provision. 16. 16. Herein, there is no application under Section 5 of Limitation Act for condonation of delay in time consumed after lapse of time of bringing legal heirs on record and also time for setting aside of abatement. Moreover, without an application under Section 5 of Limitation Act, a delay cannot be condoned and an application [2025:RJ-JP:1284] (7 of 7) [CMA-3388/2017] under Order XXII Rule 3 CPC or application under Order XXII Rule 9 CPC cannot be allowed. 17. The counsel has referred judgment in case of Oriental Insurance Company Ltd. Vs. Kahlon @ Jasmail Singh Kahlon (supra) wherein Hon’ble Supreme Court has observed as under:- “We see no reason to deviate from the consistent judicial view taken by more than one High Court that loss of estate would include expenditure on medicines, treatment, diet, attendant, Doctor’s fee, etc. Including income and future prospects which would have caused reasonable accretion to the estate but for the sudden expenditure which had to be met from and depleted the estate of the injured, subsequently deceased.” 18. The Tribunal after considering the evidence on record came to the conclusion that no medical bill was filed and no leave sanctioned record was filed on record to connect loss of earning capacity due to permanent disablement. Herein, the deceased- claimant was working as roadways conductor and even after the accident, he continued work as roadways conductor and there was no evidence to suggest that the claimant has lost his earning capacity. Similarly, the admission clearly indicate that medical bills were reimbursed by employer. 19. Considering aforesaid, the application by the counsel for appellant is liable to be dismissed. In view of aforesaid, the application Nos.1/2022 and 1/024 are hereby dismissed. 20. As a result, the appeal stands abated and same is dismissed in abatement. 21. Misc. application, if any, stands disposed of. (ASHOK KUMAR JAIN),J GAURAV /07