Liberal View Of Section 5 Limitation Act Applies To Abatement Cases Under Order XXII CPC: Telangana HC
The Telangana High Court ruled that a liberal view of Section 5 of the Limitation Act, 1963 should be applied in cases of abatement of the suit under Order XXII of CPC.
The Court stated that 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 bench of Justice Moushumi Bhattacharya and Justice Nagesh Bheemapaka observed, “The liberal view of Section 5 of The Limitation Act, 1963 has been specifically applied to cases under Order XXII of the C.P.C on the touchstone of substantial justice.”
“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.”, the Court further observed.
Brief Facts-
The Plaintiffs (respondents here) filed suit seeking eviction of 3 defendants, recovery of rent arrears, damages for illegal occupation, and future profits. The suit was decreed with direction to 2 defendants to vacate within two months. The defendants appealed and obtained an interim stay on execution by depositing 50% of the decretal amount. Plaintiff No.8 passed away, leading to the abatement of the appeal against them. The legal representatives filed applications seeking relief.
“Order XXII provides for the survival of a Suit notwithstanding death, marriage and insolvency of parties...Order XXII Rule 3 of the C.P.C.., provides for the procedure in case of death of one of several plaintiffs or of the sole plaintiff.”, the Court stated.
The Court further stated that Order XXII Rule 3 of the C.P.C. presumes that the right to sue survives and mandates the Court to cause the legal representatives of the deceased plaintiff to be made parties to the Suit on an application being made on that behalf.
The Court noted that Order XXII Rule 3 (2) of the C.P.C contemplates a period for making an application under Sub-Rule (1) for setting aside abatement of the Suit and Order XXII Rule 9(3) of the C.P.C makes the provision of Section 5 of The Limitation Act, 1963, applicable to such applications.
The Court mentioned the decision in Perumon Bhagvathy Devaswom Perinadu Village v. Bhargavi Amma (dead) by LRs7, where according to the Court the Supreme Court summarised the principles applicable to setting aside of abatement and emphasised that sufficiency of cause should be understood from a pragmatic and liberal perspective to advance the cause of justice, particularly where the delay is not on account of deliberate inaction.
Finally, the Court allowed the applications filed by the legal representatives of the respondent while stating that the legal representatives of the deceased shall be added as parties to the appeal as respondents.