[2025:RJ-JP:6816] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Second Appeal No. 1/2009 Aasu S/o Shri Budhan, Village Milakpur Turk, Teh. Tijara, Distt. Alwar ----Appellant Versus Isab S/o Kadar, Village Milakpur Turk, Teh. Tijara, Distt. Alwar ----Respondent For Appellant(s) : Mr. Abhi Goyal for Mr. J.P. Goyal, Senior Advocate For Respondent(s) : Mr. Lucky Sharma & Mr. Himanshu Goyal both for Mr. Aditya Mathur HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Order 06/01/2025 1. Instant Civil Second Appeal is preferred by appellant-plaintiff aggrieved from judgment dated 19.08.2008 in Civil Regular Appeal No. 11/2003 passed by learned Additional District Judge No.2, Kishangarhbas, Camp Tijara, District Alwar, whereby appeal preferred by defendant against judgment and decree dated 24.05.2003 in Civil Suit No. 114/1995 passed by learned Civil Judge (Senior Division) Kishangarhbas, District Alwar was allowed and judgment and decree in favour of plaintiff was set aside and plaint was dismissed. 2. It has come to the notice that sole respondent-defendant has expired at Tijara on 30.08.2016 and an application for substitution of LRs was filed on 05.12.2024. An application under Section 5 of Limitation Act is also filed for condonation of delay. [2025:RJ-JP:6816] (2 of 8) [CSA-1/2009] 3. Learned counsel appearing on behalf of appellant submits that the counsel for respondent did not inform about the death of sole respondent-defendant and as a result, the application could not be filed in time. He submits that in several judgments, this Court has already allowed the applications for taking on record legal heirs after setting aside of abatement and condonation of delay. He referred the judgment in case of Dinesh Kumar & Anr. Vs. Shiv Taj Singh & Ors. (S.B. Civil First Appeal No.289/2001 dated 16.11.2023). 4. On the contrary, learned counsel for respondents referred a judgment in the case of Union of India Vs. Ramcharan and Anr. AIR 1964 SC 215, wherein Hon’ble Supreme Court while considering the provision of abatement under Order XXII Rule 4, 9 and 11 of CPC and limitation, held that if plaintiff/applicant was prevented by any sufficient cause in making application then bonafides are required to be established whereas period of limitation shall start from date of death and not from knowledge. 5. The counsel for respondent has submitted that it was the duty of appellant-plaintiff to bring this fact on record and now after a delay of almost nine years, this application was filed. He submitted that no reasons were assigned for condonation of delay, therefore, application for condonation of delay cannot be allowed. 6. Heard submission of learned Senior Advocates appearing for appellant and learned counsel appearing for respondent. 7. In case of Rashtriya Yuva Udhyog Vs. Smt. Dheeraj Kanwar AIR 2000 Raj. 353, a Co-ordinate Bench of this Court while relying upon Union of India Vs. Ramcharan (supra), [2025:RJ-JP:6816] (3 of 8) [CSA-1/2009] abated the appeal in failing to bring legal representatives on record within stipulated time. 8. In one of the landmark judgments in case of Perumon Bhagvathy Devasom Perinadu Village Vs. Bhargavi Amma (death) by LRs and Ors. and reported as (2008) 8 SCC 321, Hon’ble Supreme Court while considering the provisions of Order XXII of CPC observed that in case of death of respondent, if no application to bring legal representatives on record is made, then, abatement takes place on the expiry of prescribed period by the operation of law. The abatement is not dependent upon any judicial adjudication or declaration of such abatement by a judicial order and which occurs by operation of law. 9. A perusal of order indicate that on 09.10.2017, the time was sought for exploring the chances of settlement and again a prayer for adjournment was made on 09.11.2017. Thereafter, time was sought to seek instructions on 26.07.2024. A perusal of application indicate that after death of respondent-Isab on 30.08.2016, substitution application was filed only on 05.12.2024. 10. In application, it was mentioned that on 07.11.2024 when the counsel for respondent orally informed about death of respondent then only they only came to know about death of respondent. Further, no application was filed under Order XXII Rule 10-A of CPC informing about death of respondent. Here, in the title of suit, First Appellate Court and present appeal clearly indicate that both the parties were resident of same village. Even assuming the fact that they may be resident of different hamlets [2025:RJ-JP:6816] (4 of 8) [CSA-1/2009] even then, it is same vicinity. It is hard to believe that appellant- plaintiff is unaware about death of respondent-defendant. 11. No grounds whatsoever were mentioned for seeking condonation of delay. An application under Section 5 of Limitation Act is filed but no reasons of delay are assigned except that appellant is a rustic villager and unaware about legal intricacies. Further no application under Order XXII Rule 10-A CPC was filed, on record about intimation of death of respondent. 12. 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. 13. 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 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 [2025:RJ-JP:6816] (5 of 8) [CSA-1/2009] 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. 14. 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 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 [2025:RJ-JP:6816] (6 of 8) [CSA-1/2009] 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. 15. 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. 16. 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:- (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; [2025:RJ-JP:6816] (7 of 8) [CSA-1/2009] (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. 17. 17. Having considered the entirety of facts and circumstances of the case, it is quite clear that there is extraordinary delay in the instant case and for almost eight years, no action was taken by appellant, whereas the matter was listed even in 2017. Both the parties were resident of same village and vicinity. In a small village, it is impossible that a party was unaware about death of other person in their village. It is not a case of city or metro rather the death is of a person, who was residing in the same village/vicinity is that of appellant. 18. The reasons are neither justifiable nor sufficient. The ground of rustic village or unaware about legal intricacies is general in nature and same are not sufficient for condonation of delay. Usually, we adopt a reasonable yardstick and same was adopted in [2025:RJ-JP:6816] (8 of 8) [CSA-1/2009] case of Balwant Singh (dead) Vs. Jagdish Singh and Ors. (supra) but herein, there is an extraordinary delay of more than eight years, then in a case, wherein without a sufficient reason, a delay can not be condoned. Thus, both the applications are liable to be dismissed. 19. In view of aforesaid, the application under Order XXII Rule 4, 9 and 11 CPC and Section 5 of Limitation Act are hereby dismissed. 20. As a result, the instant civil second appeal stands abated and same is dismissed in abatement. 21. Misc. application, if any, stands disposed of. (ASHOK KUMAR JAIN),J GAURAV /68