# Sanjai Singh & Anr v. Girja Shankar & Ors

- **Citation:** (2016) 3 ILRA 492
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-02-26
- **Bench:** Pramod Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sanjai-singh-anr-v-girja-shankar-ors-43476
- **Pages:** 7

## Headnote

Sankatha Rai, Dr. Vinod Kumar Rai

This Second Appeal No. 270/1990 was preferred by two appellants Namely, Sanjai Singh and Santosh
Singh, against three respondents Namely Girja Shanker Upadhyaya, Sohan and Mohan. Admittedly,
Two appellants and the respondent no.-1 Sohan are real brothers. All The parties of this appeal are
resident of same village Mathpur, Pargana Karanda, District Ghazipur. Respondent no.-1 Girja Shanker
Upadhyay had died on 3.3.2006 and was not substituted. Since no Substitution application was
preferred within period of limitation,Therefore the appeal against him had automatically been abated.
So The respondent side had moved Abatement Application No.360049/2014. Appellant side had
moved Substitution Application No.-18669/2016 on 19.1.2016. Same day, appellants have moved
Delay Condonation Application No.-18665/2016 for condoning the Delay in filing substitution
application, and also the Application No.- 18669/2016 for setting aside the abatement of appeal
against Respondent no.-1. In this case Parties are resident of same village and had knowledge of
death of respondent no.-1 from very beginning. It Is nowhere mentioned in affidavit or application of
appellant that he Had no knowledge of death of respondent no.-1 earlier. There is no sufficient ground
for condoning the Deliberate very long delay in moving substitution application. In Absence of any
reasonable or sufficient ground, the Delay Condonation Application No.-18665/2016 and Abatement
(Setting Aside) Application No.-18666/2016 are rejected. Therefore, being Time barred, Substitution
Application No.-18669/2016 is also Rejected. Accordingly, Abatement Application No. 360049/2014
Moved by respondents' side is allowed. This appeal is declared Abated against deceased respondent
no.-1 Girija Shanker Upadhyaya.

Held: Para-

Case Law discussed:

Popat and Kotech Property v. State Bank of India Staff Association(2005) 7 SCC 510, France B.
Martins v. Mafalda Maria Teresa Rodrigues;(1999) 6 SCC 627).

V. Subbf Rao v. Secy. To Govt. Panchayat Raj and Rural Development, Govt. Of A.P.; (1996)7 SCC
626).

N.Balakrishnan v. M. Krishnamurthy; (1998) 7 SCC 123)."Damodaran Pillai & others v. South Indian
Bank Ltd., AIR 2005 S.C. 3460, Himanshu Dhar Singh v. Additional Registrar, (Co-operative Societies,
Uttar Pradesh, Lucknow & another, AIR 1962 Allahabad 439,

## Text

492 INDIAN LAW REPORTS ALLAHABAD SERIES

3. The grievance raised is that the petitioner has succeeded in getting funds under the Indira
Gandhi Awas Yojna and for the construction of his portion of the house which is stated over Abadi
land, obstructions have been created by the respondent no.5 in raising constructions.

4. It also appears that the respondent no.5 has filed a Civil Suit of partition being Civil Suit
No.153 of 2015 Sahtoo Vs. Mahangu which is stated to be pending before the learned Civil Judge
Junior Division, Ambedkar Nagar, where a written statement has been filed by the petitioner.

5. We have considered the submissions raised and the prayer made in this writ petition is that a
mandamus be issued to provide adequate security to the petitioner for construction of the petitioner's
house. The nature of the dispute is a usual dispute between two real brothers in a rural area. It is
unfortunate, that two aged brothers are now disputing each others rights over the said abadi land and
the unfortunate part is that such a litigation of a civil suit would ordinarily not terminate at least during
their life time.

6. It is in this back ground that we hereby issue a direction to the learned Civil Judge Junior
Division, Ambedkar Nagar in exercise of the powers conferred on us under the Constitution read with
Section 89 of the Civil Procedure Code that the learned Civil Judge Junior Division would explore
the possibility of an immediate resolution of the dispute by sending the matter to the Mediation
Centre.

7. The petitioner and the respondent no.5 shall appear before the learned Civil Judge Junior
Division, Ambedkar Nagar on 01.04.2016.

8. A copy of this order shall be placed by the petitioner on the record of the said civil suit and the
learned Civil Judge Junior Division, Ambedkar Nagar shall act accordingly. In the event the parties
consent for sending the matter for mediation, keeping in view the provisions of section 89, the matter
shall be immediately transmitted to the Mediation Centre and the Court hopes and expresses trust in
the petitioner and the respondent no.5 that they will try to resolve their dispute amicably at least
during their life time.

9. With these observations, the writ petition is disposed of.
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APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.02.2016

BEFORE

THE HON'BLE PRAMOD KUMAR SRIVASTAVA, J.

Second Appeal No. - 270 of 1990

Sanjai Singh & Anr. ...Appellants
Versus
Girja Shankar & Ors. ...Respondents
3 All. Sanjai Singh & Anr. Vs Girja Shankar & Ors.
493

Counsel for the Appellants:
S.K. Verma, Siddhartha Varma

Counsel for the Respondents:
Sankatha Rai, Dr. Vinod Kumar Rai

This Second Appeal No. 270/1990 was preferred by two appellants Namely, Sanjai Singh and Santosh
Singh, against three respondents Namely Girja Shanker Upadhyaya, Sohan and Mohan. Admittedly,
Two appellants and the respondent no.-1 Sohan are real brothers. All The parties of this appeal are
resident of same village Mathpur, Pargana Karanda, District Ghazipur. Respondent no.-1 Girja Shanker
Upadhyay had died on 3.3.2006 and was not substituted. Since no Substitution application was
preferred within period of limitation,Therefore the appeal against him had automatically been abated.
So The respondent side had moved Abatement Application No.360049/2014. Appellant side had
moved Substitution Application No.-18669/2016 on 19.1.2016. Same day, appellants have moved
Delay Condonation Application No.-18665/2016 for condoning the Delay in filing substitution
application, and also the Application No.- 18669/2016 for setting aside the abatement of appeal
against Respondent no.-1. In this case Parties are resident of same village and had knowledge of
death of respondent no.-1 from very beginning. It Is nowhere mentioned in affidavit or application of
appellant that he Had no knowledge of death of respondent no.-1 earlier. There is no sufficient ground
for condoning the Deliberate very long delay in moving substitution application. In Absence of any
reasonable or sufficient ground, the Delay Condonation Application No.-18665/2016 and Abatement
(Setting Aside) Application No.-18666/2016 are rejected. Therefore, being Time barred, Substitution
Application No.-18669/2016 is also Rejected. Accordingly, Abatement Application No. 360049/2014
Moved by respondents' side is allowed. This appeal is declared Abated against deceased respondent
no.-1 Girija Shanker Upadhyaya.

Held: Para-

Case Law discussed:

Popat and Kotech Property v. State Bank of India Staff Association(2005) 7 SCC 510, France B.
Martins v. Mafalda Maria Teresa Rodrigues;(1999) 6 SCC 627).

V. Subbf Rao v. Secy. To Govt. Panchayat Raj and Rural Development, Govt. Of A.P.; (1996)7 SCC
626).

N.Balakrishnan v. M. Krishnamurthy; (1998) 7 SCC 123)."Damodaran Pillai & others v. South Indian
Bank Ltd., AIR 2005 S.C. 3460, Himanshu Dhar Singh v. Additional Registrar, (Co-operative Societies,
Uttar Pradesh, Lucknow & another, AIR 1962 Allahabad 439,

(Delivered by Hon'ble Pramod Kumar Srivastava, J.)

1. Heard learned counsel for the parties and perused the records.

2. This Second Appeal No. 270/1990 was preferred by two appellants namely, Sanjai
Singh and Santosh Singh, against three respondents namely Girja Shanker Upadhyaya,
Sohan and Mohan. Admittedly, two appellants and the respondent no.-1 Sohan are real
brothers. All the parties of this appeal are resident of same village Mathpur, Pargana
Karanda, District Ghazipur.
494 INDIAN LAW REPORTS ALLAHABAD SERIES

3. It is also admitted fact that respondent no.-1 Girja Shanker Upadhyay had died on
3.3.2006 and was not substituted. Since no substitution application was preferred within
period of limitation, therefore the appeal against him had automatically been abated. So the
respondent side had moved Abatement Application No. 360049/2014. Appellant side had
moved Substitution Application No.-18669/2016 on 19.1.2016. Same day, appellants have
moved Delay Condonation Application No.-18665/2016 for condoning the delay in filing
substitution application, and also the Application No.-18669/2016 for setting aside the
abatement of appeal against respondent no.-1.

4. The grounds of condonation of delay in moving substitution application and for
setting aside the abatement of appeal regarding respondent no.-1 is mentioned in affidavit
filed in support of aforesaid application, the deponent of which is appellant no.-2 Santosh
Singh. These grounds are that deponent's brother Sanjai Singh (appellant no.-1) had been
doing all required pairvi of the case, but for about 15 years he has been confined to bed due
to his 100% disability owing to an accident, and the deponent (appellant no.-1) had very
little knowledge of law, and was under impression that the substitution application would be
moved by the heirs of deceased. Some time back, deponent/appellant no.-1 had come
Allahabad, then the clerk of his counsel had informed about moving of abatement in year
2014 by respondents. Thereafter, on advice of his counsel present substitution application
alongwith other applications are being moved.

5. These grounds mentioned in affidavit of appellant no.-2 were reiterated by learned
counsel for the appellant during arguments. He contended that this Court and Hon'ble
Supreme Court had condoned much longer delay earlier and there should be liberal
approach in condonation of delay. So his applications for condonation of delay in moving
substitution and for setting aside abatement of appeal should be allowed.

6. It is admitted fact that appellants and respondent no.-2 are real brothers, and all
parties are resident of same village. It is never mentioned in affidavit or application that
appellants had no knowledge of death of respondent no.-1 immediately after his death.
Therefore, admittedly appellants had deliberately not filed substitution application within
time. So far contention of appellant no.-2 doing pairvi of the case is concerned, this
contention is also not acceptable because said appellant no.-1 had undergone accident and
allegedly became disabled 15 years back. For last about 10 years, appellant including
appellant no.-2 had knowledge of death of respondent no.-1, but had not moved any
substitution application nor approached his counsel for the same. Therefore, there appears
no sufficient ground for accepting the reason presented by appellants' side for condonation
of delay in moving substitution application or for setting aside abatement of appeal
regarding respondent no.-1.

7. This contention of learned counsel for the appellants is not acceptable that it was
duty of the respondent side to inform the court about death of respondent no.-1 and take
appropriate steps. The death of respondent no.-1 was in knowledge of appellants from very
beginning and they being appellants were duty bound to move substitution application in
3 All. Sanjai Singh & Anr. Vs Girja Shankar & Ors.
495
time. It was not responsibility of the surviving respondents to assist appellants for
prosecuting the case against them. Apart from it, the respondents had already informed not
only to this court but also to counsel for appellant regarding death of respondent no.-1 by
moving their Abatement Application No. 360049/2014. In spite of such application being
moved, no appropriate steps were taken in moving substitution application. Even from the
moving of Abatement Application No. 360049/2014 by respondents, more than sufficient
time has already been passed; therefore, appeal regarding respondent no.-1 had been abated.

8. In Popat and Kotech Property v. State Bank of India Staff Association(2005) 7
SCC 510, Hon'ble Apex Court had held as under:-

"7. The period of limitation is founded on public policy, its aim being to secure the
quiet of the community, to suppress fraud and perjury, to quicken writ diligence and to
prevent oppression. The statute i.e. the Limitation Act is founded on the most salutary
principle of general and public policy and incorporates a principle of great benefit to the
community. It has, with great propriety, been termed a statute of repose, peace and justice.
The statute bar discourages litigation by burying in one common receptacle all the
accumulations of past times which are unexplained and have not from lapse of time become
inexplicable. It has been said by John Voet, with singular felicity, that controversies are
limited to a fixed period of time, lest they should be immortal while men are mortal. (Also
see France B. Martins v. Mafalda Maria Teresa Rodrigues;(1999) 6 SCC 627).

8. Bar of limitation does not obstruct the execution. It bars the remedy. (See V.
Subbf Rao v. Secy. to Govt. Panchayat Raj and Rural Development, Govt. of A.P.; (1996)7
SCC 626 ).

9. Rules of limitation are not meant to destroy the rights of parties. They are
meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly.
The object of providing a legal remedy is to repair the damage caused by reason of legal
injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the
legal injury so suffered. Time is precious and wasted time would never revisit. During the
efflux of time, newer causes would sprout up necessitating newer persons to seek legal
remedy by approaching the courts. So, a lifespan must be fixed for each remedy. Unending
period for launching the remedy may lead to unending uncertainty and consequential
anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim
interest reipublicae ut sit finis litium (it is general welfare that a period be put to litigation).
The idea is that every legal remedy must be kept alive for legislatively fixed period of time
(See N.Balakrishnan v. M. Krishnamurthy; (1998) 7 SCC 123)."

9. In Damodaran Pillai & others v. South Indian Bank Ltd., AIR 2005 S.C. 3460,
Hon'ble Apex Court had held as under:-

"14. It is also trite that the civil court in absence of any express power cannot
condone the delay. For the purpose of condonation of delay in absence of applicability of
the provisions of Section 5 of the Limitation Act, the court cannot invoke its inherent power.
496 INDIAN LAW REPORTS ALLAHABAD SERIES

15. It is well settled that when a power is to be exercised by a civil court under an
express provision, the inherent power cannot be taken recourse to.

"20. The principles underlying the provisions prescribing limitation are based on
public policy aiming at justice, the principles of repose and peace and intended to induce
claimants to be prompt in claiming relief.

21. Hardship or injustice may be a relevant consideration in applying the
principles of interpretation of statute, but cannot be a ground for extending the period of
limitation."

10. This legal position is explicitly clear that the principles underlying provisions of
limitation are based on public policy aiming that justice should be furnished to all the parties
and hardship or injustice may be relevant consideration in applying the discretion for
condoning the delay. But such hardship of both the parties should be considered. In
condoning the delay beyond period of limitation provided by the statute there must be
cogent and satisfactory reasons. Such reasons are lacking in present matter.

11. Learnned counsel for the applicant-appellant had cited Raja Himanshu Dhar
Singh v. Additional Registrar, (Co-operative Societies, Uttar Pradesh, Lucknow &
another, AIR 1962 Allahabad 439, in which relevant portion pointed out is as under:-

"The position of affidavits is that of a statement on oath. Their importance is
enhanced in proceedings like a writ where no parol evidence is recorded and if a party
makes a definite allegation and the other party does not controvert it for summons the
deponent of that affidavit for cross-examination, the only conclusion at which Courts can
arrive is that the allegations being uncontroverted and not challenged by cross-examination
must be accepted."

12. On basis of this ruling, counsel for the applicant-appellant contended that since his
application was uncontroverted, therefore, said application for condonation of delay in
moving the substitution application and for setting aside the abatement should be treated as
based on sufficient grounds and should be allowed.

13. The application for condonation of delay has been moved by appellant under
Section 5 of Limitation Act, 1963, which reads as under:

"5. Extension of prescribed period in certain cases.--Any appeal or any
application, other than an application under any of the provisions of Order XXI of the Code
of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the
applicant satisfies the court that he had sufficient cause for not preferring the appeal or
making the application within such period."
3 All. Sanjai Singh & Anr. Vs Girja Shankar & Ors.
497

14. There is period prescribed for initiation of every legal proceedings in Limitation
Act, and such period may be extended in accordance with mandatory provisions of the Act.
The said provisions of Section-5 make its explicitly clear and mandatory that an application
for extension of prescribed period of limitation may be allowed only if the appellant or
applicant satisfies the Courts that he had sufficient cause for not preferring the appeal or
making the application within such period. As discussed above, for deciding the matter of
limitation not only the case of applicant/appellant should be considered, but the principles
underlying the provisions the Act, which are based on public policy alongwith hardship and
injustice to other party should also be considered. In the present matter, every consideration
leads to inference against applicant-appellant. It has also been proved that applicantappellant had failed to satisfy this Court that he had sufficient cause for moving the
application for setting aside the abatement or for not moving the substitution application
within period of limitation therefore under the provisions of Section 5 of Limitation Act his
application should not be allowed. So far the above mentioned ruling of this Court is
concerned, it is not applicable in present matter, because the order is being passed on the
basis of sufficiency of grounds for condoning the delay and this sufficiency is based on
satisfaction of the Court. Again principle of said ruling is not applicable in present matter
because respondent was never asked or afforded opportunity to file any counter affidavit. So
non filing of counter affidavit, in present matter, cannot prejudice legal rights of
respondents' side.

15. Learned counsel for the applicant-appellant contended that it is duty of the
respondent side to inform the death of respondent under Order XXII, Rule 10-A CPC. He
relied on AIR 1983 SC 1202 Gangadhar & another v. Shri Rai Kumar and argued that since
death of respondent no.-1 was not informed by counsel for the respondent so abatement
should be set aside. Rule 10-A of Order XXII CPC reads as under:

"10A. Duty or pleader to communicate to Court death of a party-Wherever a
pleader appearing for a party to the suit comes to know of the death of that party, he shall
inform the Court about it, and the Court shall there upon give notice of such death to the
other party, and, for this purpose, the contract between the pleader and the deceased party
shall be deemed to subsist."

16. As discussed above, parties are resident of same village and had knowledge of
death of respondent no.-1 from very beginning. It is nowhere mentioned in affidavit or
application of appellant that he had no knowledge of death of respondent no.-1 earlier. Apart
from it the respondent side had already moved Application No. 360049/2014 for abatement
of appeal due to non-substitution after death of said respondent, which had given
information of his death to court and appellant side. But no application for substitution was
moved within period of limitation. Thus in spite of information given in accordance with
provisions of Order XXII, Rule 10-A CPC substitution application was not moved within
period of limitation. Therefore said ruling is not applicable in this matter and the arguments
are also not acceptable. Provisions of Rule 1-A of Order XXII CPC is not applicable in
cases when appellant had already in knowledge of person concerned, but no substitution
application is moved within stipulated period of limitation without sufficient reason.
498 INDIAN LAW REPORTS ALLAHABAD SERIES

17. In present case there is no sufficient ground for condoning the deliberate very long
delay in moving substitution application. In absence of any reasonable or sufficient ground,
the Delay Condonation Application No.-18665/2016 and Abatement (Setting Aside)
Application No.-18666/2016 are rejected. Therefore, being time barred, Substitution
Application No.-18669/2016 is also rejected. Accordingly, Abatement Application No.
360049/2014 moved by respondents' side is allowed. This appeal is declared abated against
deceased respondent no.-1 Girija Shanker Upadhyaya.

18. After the death of respondent no.-1, whether the appeal can proceed against other
respondents or whether cause of action had also abated is a matter that requires hearing.

19. List on 18th March, 2016 for hearing.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.02.2016

BEFORE

THE HON'BLE RAKESH TIWARI, J.
THE HON'BLE VIVEK KUMAR BIRLA, J.

Special Appeal Defective No. - 326 of 2011

Smt. Sarla Mishra ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Bhoopendra Nath Singh, Devendra Pratap Singh

Counsel for the Respondents:
C.S.C.

This special appeal has been preferred challenging the validity and correctness of the judgment and
order dated 30.1.2009 and 9.11.2010 passed by the Writ Court in Civil Misc. Writ Petition No. 5243 of
2009, Smt. Sarla Mishra Vs. State of U.P. through its Principal Secretary, Secondary Education,
Lucknow and others.It appears from the record that a review application was preferred by the
petitioner - appellant, which was also dismissed vide order dated 9.11.2010 saying that no ground for
review is made out.This defective special appeal no. 326 of 2011 has thereafter been filed by the
appellant alongwith delay condonation application. The office has reported that the appeal filed on
19.3.2009 is beyond time by 2 years 11 days. It appears from the report of the Stamp Reporter as
well as from the judgment impugned in this appeal that the appellant had approached the Court after
a delay of 27 years and thereafter had preferred the special appeal after 2 years. The laches of 29
years have not been satisfactorily explained. It is, therefore, clear that even after passing of the
judgment in Writ Petition No. 11208 of 1982 dated 27.9.2004 the petitioner did nothing for four years.
As such no relief can now be granted to the petitioner on the strength of the judgment dated
27.9.2004 passed in Writ petition No. 11208 of 1982. In our considered opinion, the approach of the
Writ Court cannot faulted with and the writ petition filed by the petitioner has rightly been dismissed