# Barati Lal and others v. Natthu

- **Citation:** (2007) 1 ILRA 63
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-02-26
- **Case number:** Civil Misc. Writ Petition No. 21403 of 2006
- **Bench:** Shishir Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/barati-lal-and-others-v-natthu-40911
- **Pages:** 7

## Headnote

Code of Civil Procedure-Order 22 Rule-2Abatement of Suit-Appellant died on
23.6.94 substitution application moved
on
1.2.99-without
application
to
condone the delay-without prayer for
rejecting abatement if any-satisfactory
explanation
not
given-substitution
application-held-can not be allowed.
Held: Para 18 & 21

In the entire perspective, it does appear
that the delay was deliberate in spite of
the fact that the respondents were
having knowledge regarding the death
on 22.2.2003, which is apparent on the
basis
of
the
statement
of
the
respondents. But no application prior to
25.4.2003 has been filed. No explanation
has been given by the respondents that
why in spite of the knowledge regarding
the
death
of
two
defendants
on
22.2.2003 application was not filed
within a reasonable period. There is no
explanation in the application filed by
the respondents. In various cases Apex
Court has held that for the purposes of
benefit under Section 5, the sufficient
cause means the sufficient reason has to
be explained for not approaching the
Court within time and day to day delay
has to be explained in the application. If
that has not been explained the same is
fatal. No doubt the law of limitation may
effect a particular party, but it has to be
applied with all its rigour when the
statute so prescribed and the courts
have got no power to extend the period
of limitation on equitable grounds.

In view of the aforesaid fact and in view
of the Apex Court judgements, as there
is no reasonable explanation in the
application for substitution and there is
no
day-to-day
delay
explained,
therefore, in my opinion, allowing the
application by the trial court is liable to
be set aside.
Case law discussed:
1997 (8) J.T.-189
J.T. 2000 (4) S.C.-408
2002 (93) RD-56
2001 (45 ALR-192
1995 SCC (1)-242

## Text

1 All] Barati Lal and others V. Natthu
63
"The
allegations
made
against
the
respondent contained in the counter
affidavit by way of a defence filed on
behalf of the appellants also do not
change the nature and character of the
order of termination."( para35)

In view of law as laid down and
discussed
above,
neither
from
the
averments contained in the counter
affidavit nor from the order of termination
or show-cause notice, it can be said that
the impugned termination is stigmatic in
nature instead of termination simplicitor.

In the result, the writ petition lacks
merit and is, accordingly, dismissed
without any order as to costs.

Petition Dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.02.2007

BEFORE
THE HON'BLE SHISHIR KUMAR, J.

Civil Misc. Writ Petition No. 21403 of 2006

Barati Lal and others
...Petitioners
Versus
Natthu

...Respondent

Counsel for the Petitioners:
Sri R.R. Shivahare
Sri A.K. Tewari

Counsel for the Respondent:
Sri P.R. Maurya

Code of Civil Procedure-Order 22 Rule-2Abatement of Suit-Appellant died on
23.6.94 substitution application moved
on
1.2.99-without
application
to
condone the delay-without prayer for
rejecting abatement if any-satisfactory
explanation
not
given-substitution
application-held-can not be allowed.
Held: Para 18 & 21

In the entire perspective, it does appear
that the delay was deliberate in spite of
the fact that the respondents were
having knowledge regarding the death
on 22.2.2003, which is apparent on the
basis
of
the
statement
of
the
respondents. But no application prior to
25.4.2003 has been filed. No explanation
has been given by the respondents that
why in spite of the knowledge regarding
the
death
of
two
defendants
on
22.2.2003 application was not filed
within a reasonable period. There is no
explanation in the application filed by
the respondents. In various cases Apex
Court has held that for the purposes of
benefit under Section 5, the sufficient
cause means the sufficient reason has to
be explained for not approaching the
Court within time and day to day delay
has to be explained in the application. If
that has not been explained the same is
fatal. No doubt the law of limitation may
effect a particular party, but it has to be
applied with all its rigour when the
statute so prescribed and the courts
have got no power to extend the period
of limitation on equitable grounds.

In view of the aforesaid fact and in view
of the Apex Court judgements, as there
is no reasonable explanation in the
application for substitution and there is
no
day-to-day
delay
explained,
therefore, in my opinion, allowing the
application by the trial court is liable to
be set aside.
Case law discussed:
1997 (8) J.T.-189
J.T. 2000 (4) S.C.-408
2002 (93) RD-56
2001 (45 ALR-192
1995 SCC (1)-242

(Delivered by Hon'ble Shishir Kumar, J.)

1. The present writ petition has been
filed for quashing the order dated
13.9.2005 (Annexure 4 to the writ
64 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
petition) passed by the Additional District
Judge, Court No.4 Hamirpur and order
dated 19.1.2005 passed by the Civil Judge
(Junior Division), Hamirpur.

2. The facts arising out of the
present
writ
petition
are
that
the
respondent No.1 filed an Original Suit
No.10 of 1997 against the petitioners'
predecessors Shivraj and Prabhu Dayal
for cancellation of sale deed dated
12.1.1989. During the pendency of the
said suit, the defendant No.1 Shivraj died
on 18.7.2002 and the other defendant
Prabhu Dayal also died on 27.5.2001. The
plaintiff respondent and his counsel was
having the said information about the date
of
death
but
no
application
for
substitution was moved within time. An
application was moved on 21.4.2003
describing the same under Order 22 Rule
2 and under Order 6 Rule 17 of the Civil
Procedure Code.

3. An objection was filed on behalf
of the petitioners that the application
under Order 22 Rule 2 and under Order 6
Rule 17 of Civil Procedure Code is not
maintainable
and
no
amendment
application can be given to substitute
Shivkali W/o Shivraj on the date of filing
the said application Shivkali W/o Shivraj
has already died. No date regarding the
date of death of the persons to whom
application of substitution has been made
has not been given. Both the parties are
living in the said village in a very short
distance, therefore, it cannot be presumed
that they had no knowledge regarding the
death of Shivraj who died on 18.7.2002
and Prabhudayal died on 27.5.2001. It has
further been stated that as the application
has been filed after 150 days and no
prayer in the application for setting aside
the abetment has been made or any
application has been filed, therefore, the
application for substitution cannot be
considered but the trial Court without
taking into consideration the aforesaid
fact, has allowed the said application vide
its order dated 19.1.2004. The petitioners
aggrieved by the aforesaid order, has filed
a revision and the revision too has been
dismissed by order dated 13.9.2005. A
copy of the same has been filed as
Annexure 4 to the writ petition.

4. It has been submitted on behalf of
the petitioners that as the parties are living
in the same village and their houses are
nearby in the village, as such, it cannot be
believed that they were not having any
knowledge regarding the death. It has also
been stated that as no date has been
mentioned regarding the date of death of
the persons to be substituted, as such, the
application was not maintainable. It has
also clearly been averred that the
plaintiffs-respondents have participated in
the
funeral
and
their
substitution
application has not been filed within time
and without making an application for
setting aside the abatement and even
Section 5 application has not been filed,
therefore, the application for substitution
cannot be allowed.

5. A finding to this effect that
respondents came to know regarding the
death of the defendants on 21.8.2003 is
not turn out from any relevant evidence
that how they came to know on that date
regarding date of death. In view of the
aforesaid fact, the petitioners submit that
the impugned order is liable to be set
aside.

6. Reliance has been placed upon
two judgements of the Apex Court
reported in Judgement Today 1997(8) 189
1 All] Barati Lal and others V. Natthu
65
P.K.Ramachandran Vs. State of Kerala
and another and reliance has been placed
upon Para 6 of the judgement. The same
is being reproduced below:-

"Law of limitation may harshly effect
a particular party but it has to be applied
with all its rigour when the statute so
prescribe and the Courts have no power
to extend the period of limitation on
equitable
grounds.
The
discretion
exercised by the high Court was, thus,
neither proper nor judicious. The order
condoning the delay cannot be sustained.
This appeal, therefore, succeeds and the
impugned
order
is
set
aside.
Consequently,
the
application
for
condonation of delay filed in the High
Court would stand rejected and the
Miscellaneous First Appeal shall stand
dismissed as barred by time. No costs."

7. In support of the aforesaid
contention it has been submitted that the
Court has not recorded any satisfaction
that the explanation for the delay was
either reasonable or satisfactory, which is
essential prerequisite to condonation of
delay.

8. Another judgement relied upon by
the
counsel
for
the
petitioners
is
Judgement Today 2000(4) Supreme Court
408 Lal Chand Vs. Sh.Paras Ram (D) by
Lrs.& others.

9. In the aforesaid case the appellant
was died on 23.6.1994 and an application
was moved on 1.2.1999 on behalf of the
respondents for dismissing the appeal as
abated.
It
was
thereafter
that
an
application was filed on behalf of the
appellant for substitution and for setting
aside the abatement. The Apex Court held
that the fact which was stated in the
affidavit in paras 3 and 4 has held that the
explanation was not satisfactory and as
such,
rejected
the
application
for
substitution.

10. It has further been submitted that
on 28.2.2003 an information was given by
the counsel for the defendant regarding
the death of two persons namely Shivraj
and Prabhu Dayal, then first time they
have came to know that they have died
and as such, immediately an application
was filed on 21.4.2003. Petitioners further
submits that assuming without admitting
if the plaintiffs-respondents were having
knowledge regarding death of the two
defendants
on
28.2.2003
but
the
application for substitution was filed on
25.4.2003 about two months thereafter
but no explanation of the said application
for substitution has been given that in
spite of the knowledge on 28.2.2003 why
the application is being filed after two
months.

In view of the aforesaid fact, the
petitioners submit that the order passed by
both the Courts are liable to be set aside.

11. A counter affidavit has been
filed on behalf of the respondents and it
has been submitted that immediately after
coming to know the respondents filed an
application for substitution on 21.4.2003
explaining the delay before the Trial
Court and the same was allowed. It has
also been submitted that Nattu is residing
in the same village but his resident was
situated 1⁄2 kilometres distance from the
house of the petitioners and he has never
participated in the funeral and the
substitution application which has been
filed a prayer has been made for
condonation of delay. Further submission
has been made that the Court has
66 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
jurisdiction to substitute the name of the
heirs of deceased on the information of
the parties to decide the case on merit not
on the technical ground to reject the
substitution
application,
due
to
the
aforesaid
reason
the
substitution
application has been allowed. There is no
illegality in the order passed by the Court
below and the writ petition is liable to be
dismissed.

12. The counsel for the respondents
has placed reliance upon a judgement of
the Apex Court reported in 2002 (93)
R.D. 56 Ram Nath Sao Vs. Gobardhan
Sao and others and has placed reliance
upon para 12 of the said judgement. The
same is being reproduced below:-

"A court knows that refusal to
condone delay would result in foreclosing
a suitor from putting forth his cause.
There is no presumption that delay in
approaching
the
court
is
always
deliberate. This Court has held that the
words "sufficient cause" under Section 5
of the Limitation Act should receive a
liberal construction so as to advance
substantial justice vide Shakuntala Devi
Jain V. Kuntal Kumari and State of W.B.
V. Administrator, Howrah Municipality."

13. The another judgement relied
upon by the learned counsel for the
respondents is the Apex Court judgement
reported
in
2001
(45)
ALR
192
M.S.Grewal and and another Vs.Deep
Chand Sood and others and has placed
reliance upon para 27 of the said
judgement. The same is being reproduced
below:-

"27. Currently judicial attitude has
taken a shift from the old Draconian
concept
and
the
traditional
jurisprudential system-affectation of the
people has been taken note of rather
seriously and the judicial concern thus
stands on a footing to provide expeditious
relief to an individual when needed rather
than
taking
recourse
to
the
old
conservative doctrine of civil courts
obligation to award damages. As a matter
of fact the decision in D.K.Basu has not
only dealt with the issue in a manner
apposite to the social need of the country
but the learned Judge with his usual
felicity of expression firmly established
the learned Judge with his usual felicity of
expression firmly established the current
trend of 'justice oriented approach'. Law
courts will lose its efficacy if it cannot
possibly respond to the need of the
society- technicalities there might be
many but the justice oriented approach
ought not to be thwarted on the basis of
such technicality since technicality cannot
and ought not to out-weigh the course of
justice."

14. Further reliance has been placed
by the counsel for the respondents in
Nooruddin Vs. Dr.K.L.Anand reported in
(1995) 1 Supreme Court Cases 242 and in
Ramniklal N.Bhutta and another Vs.
State
of
Maharashtra
and
others
reported in AIR 1997 Supreme Court
1236.
In
support
of the aforesaid
contention, the learned counsel for the
respondents submits that "Equally the
judicial process should never become an
instrument of oppression or abuse or a
means in the process of court to subvert
justice". The power under Article 226 is
discretionary. It will be exercised only in
furtherance of interest of justice and not
merely on making out of a legal point.
The interests of justice and the public
interest coalesce. The further reliance has
been placed by the learned counsel for the
1 All] Barati Lal and others V. Natthu
67
respondents of a judgement of this Court
in Writ Petition No.43189 of 1993 Shiv
Narain Singh Vs. Board of Revenue U.P.
Allahabad and others. It has been stated
that there can be from lapse on the part of
the litigant concerned and that alone is not
enough to turn down his plea and to shut
the door against him.

15. The further submission has been
made by the respondents that as a cost of
Rs.50/- in allowing the substitution
application has been passed and the cost
has been deposited by the respondents and
both the Court below has taken into
consideration the aforesaid fact, therefore,
the writ petition is liable to be dismissed.

I have heard learned counsel for the
petitioners
and
counsel
for
the
respondents and have perused the record.

16. From the record, it is clear that
the plaintiffs-respondents came to know
regarding the death of the plaintiff
defendant on 28.2.2003 but admittedly an
application has been filed on 25.4.2003
after a lapse of about 53 days. There is no
explanation to the said application that
why the application is being made in spite
of the fact that they were having
knowledge on 28.2.2003. Under the law
the period of limitation for filing the
substitution application is 90+60 days.
After
150
days,
the
abatement
is
automatic in case no application is filed.
From the perusal of the application filed
before the trial Court, no separate
application for setting aside the abatement
has been made. Only this has been
averred that the benefit of Section 5 be
given in case there is any delay and if
there is an abatement, the abatement be
set aside. It is well settled in law that for
the purposes of condoning the delay if an
application under Section 5 is filed the
day-to-day delay is to be explained. There
is nothing on record or any averment has
been made in the application that the dayto-day delay has been explained even the
period from the date of knowledge if it is
presumed that the respondents came to
know regarding the death on 28.2.2003
but
no
explanation
for
filing
the
application for substitution on 21.4.2003
has been given from 28.2.2003 to
21.4.2003. From the averment made in
the objection as well as in the counter
affidavit, it is clear that both the parties
are residents of the same village in a
distance of half kilometre, therefore, the
story set up by the respondents that in
spite of the fact that Shivraj died on
18.7.2002 and Prabhu Dayal died on
27.5.2001, they were not having any
knowledge cannot be believed.

17. As regards, the contention raised
on behalf of the respondents that the
liberal view should be taken and sufficient
cause under Section 5 of the Limitation
Act should receive a liberal construction
so as to advance substantial justice. It has
also been submitted that the length of
delay is no matter; acceptability of the
explanation
is
the
only
criterion.
Sometimes, delay of the shortest range
may be uncondonable due to a want of
acceptable explanation whereas in certain
other cases, delay of a very long range
can be condoned as the explanation
thereof is satisfactory. It was further
expounded by the Supreme Court that
there can be some lapse on the part of the
litigant concerned and that alone is not
enough to turn down his plea and to shut
the
door
against
him
unless
the
explanation smacks of malafides if it has
been put forth as part of a dilatory
strategy. The Apex Court in one of the
68 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
case has rightly observed that a Court
knows that refusal to condone delay
would result in foreclosing a suitor from
putting forth his cause and the words
"sufficient cause" under section 5 of the
Limitation Act should receive a liberal
construction so as to advance substantial
justice.

18. In the entire perspective, it does
appear that the delay was deliberate in
spite of the fact that the respondents were
having knowledge regarding the death on
22.2.2003, which is apparent on the basis
of the statement of the respondents. But
no application prior to 25.4.2003 has been
filed. No explanation has been given by
the respondents that why in spite of the
knowledge regarding the death of two
defendants on 22.2.2003 application was
not filed within a reasonable period.
There is no explanation in the application
filed by the respondents. In various cases
Apex Court has held that for the purposes
of benefit under Section 5, the sufficient
cause means the sufficient reason has to
be explained for not approaching the
Court within time and day to day delay
has to be explained in the application. If
that has not been explained the same is
fatal. No doubt the law of limitation may
effect a particular party, but it has to be
applied with all its rigour when the statute
so prescribed and the courts have got no
power to extend the period of limitation
on equitable grounds.

19. This is also a case in which
admittedly Shivraj died on 18.7.2002 and
Prabhudayal died on 27.5.2001 and the
distance of residence of both the plaintiff
and defendants are hardly half kilometres
in the same village. But no application
was filed within time. Even after coming
to know regarding the date of death, no
application has been filed and no
explanation has been made in the
application for substitution that why the
application is being filed after 53 days
from the date of knowledge. From the
perusal of the application it is also
apparent that no separate application
under Section 5 and an application for
setting aside abatement has been filed.
Only in one line it has been stated that if
there is any delay that may be condoned
and if any abatement is there, the
abatement be set aside.

20. In my view the aforesaid
explanation is not for the purposes of
getting benefit of Section 5 of Limitation
Act. The meaning of sufficient cause is
that sufficient reason has to be explained
in the application and affidavit for taking
the benefit of Section 5 of the Act. If that
has not been done a party is not entitled
for any benefit.

21. In view of the aforesaid fact and
in view of the Apex Court judgements, as
there is no reasonable explanation in the
application for substitution and there is no
day-to-day delay explained, therefore, in
my opinion, allowing the application by
the trial court is liable to be set aside.

22. In view of the aforesaid fact, the
writ petition is allowed and the orders
dated 13.9.2005 (Annexure 4 to the writ
petition) and 19.1.2005 (Annexure 3 to
the writ petition) are hereby quashed.

There shall be no order as to costs.
Petition Allowed.
---------
1 All] Amit Anand Singh V. The V.C., B.H.U., Varanasi and others
69
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.09.2006

BEFORE
THE HON'BLE S.N. SRIVASTAVA, J.

Civil Misc. Writ Petition No. 43672 of 2006

Amit Anand Singh

...Petitioner
Versus
The Vice Chancellor, Banaras Hindu University
Varanasi and others
 ...Respondents

Counsel for the Petitioner:
Sri Ajay Shanker

Counsel for the Respondents:
Sri V.B. Singh
Sri Hem Pratap Singh
Sri Panak Naqvi

Constitution of India, Art. 226-Principle
of Natural Justice-recording reasonspetitioner while appearing B.A. Part III
examination
of
Geography
subjectgeometry box on its oversize offending
material,
recovered-after
receiving
report from invigilator-without issuing
show cause notice without charge sheet
without
offering
any
opportunitywithout
recording
any
reasonpunishment
order
can
not
sustainstatutory committee being quasi-judicial
authority held-bound to give reasons.

Held: Para 16

It would thus be eloquent that the
statutory committee, which was dealing
with
the
matter
of
unfair
means
allegedly employed by the petitioner in
attempting
questions,
being
quasijudicial authority was to act judicially
and was bound to give reasons, the duty
to give reasons being an incident of the
judicial process and to decide the matter
on the facts of the case, on the material
before them and by applying legal norms
to factual situations. There is no order at
all on record, not to speak of a reasoned
order-evidencing the fact that requisite
material was taken into reckoning by the
Committee. As no reasons are given in
the
decision
of
the
Unfair-means
Committee, which is a creation of
statute, the order impugned herein is
liable to be quashed. It thus leaves no
manner of doubt that the petitioner was
not given any opportunity and there is
also non-application of mind. Since no
reasons have been given, the impugned
order suffers from error apparent on the
face of the record and is liable to be
quashed.
Case law discussed:
1973 (2) SCC-936
1979 (2) SCC-368
1979 (4) SCC-594
1979 (4) SCC-537
AIR 1979

(Delivered by Hon'ble S.N. Srivastava, J.)

1. Impugned herein is the office
memorandum/order
dated
10.4.2006
issued by the Examination Controller,
Banaras Hindu University, Varanasi by
which it was intimated to the petitioner
that his entire examination in which the
petitioner has already appeared or which
he is likely to appear in future during the
current examination has been cancelled.

2. The facts forming background to
the case are that on 5.4.2006, while the
petitioner was writing answer to the
question paper (Geography of B.A. Part
III), a geometry box was recovered from
his possession by the flying squad
alleging further that on its obverse-side,
the offending copying material was found
written. It is averred in the writ petition
that the petitioner was not afforded any
opportunity either by way of hearing or
by requiring him to explain his stand and
further that the entire proceeding was
carried out in a post-haste manner and
ultimately, by means of impugned order,