Karnataka High Court
Smt Shamavathi vs Smt Appi S Pergade on 18 August, 2009
Equivalent citations: AIR 2010 (NOC) 586 (KAR.), 2010 (1) AIR KANT HCR 359, 2010 A I H C 1476, (2010) 2 ICC 124
Author: Ashok B.Hinchigeri
Bench: Ashok B.Hinchigeri
IN THE HIGH COURT OF KARNATAKA AT BAN GALORE
DATED THIS THE 18th DAY GE AUGUST 20To9;
BEFORE " A A
THE HON'BLE MR. JUSTICE ASHDK B. :--11NAGjH1GiER1 T; A'
WRIT PETITION NO.1935O GE 2009. 7
:33}? PETITIGE 1Io.T194;4*cf'--.2og9 A' A
1. SMT. SHAMAVATH} _ :-5'I3§53§zr£§eE<i£'5"113§
HINDU, AGED ABOUT 56 YEA1'~.'.-S-. '- $59
W/O VISI-IWANATH RA_.I';_ ' 1. A ' ' ' "
RESEDENG AT ENOLI »
PAVOOR POSTAND V1};I,AQEv__ j'
MANGALORE, =
BETWEEN
2. SMT. SOMJi3§KEIj_S1%IEDTH'I--...
W/O sHA;\m:iA_,.sHET14Y.'.'jvA.
H1NDU,_.AG'ED' ABOUT 7.1 ' 'TEARE
R/AT' IV BLOCK, SETE NO. 1 80
POS'I'._ 1TIPA1;;A_,5=74"1.49~ ._ ' -
MANGALGRE
3. sMT_._ SEETHA sE--EDTH:"
OF AITHAPPA SHETTY
E1NDI%_.I, AGED ABGUT 69 YEARS
G 'R/ATALIYAR I-IOUSE
D *ANIBAL_AMf).GA.RU VILLAGE AND POST
._1\;*£z;;L?\IGALQRE'1"ALUK, D.K. PETITIONERS
' SR1 SANATHKUMAR SI-IE} I Y K, ADV.,}
APP} S PERGADE
gw/0 LATE SHANTHARAMA PERGADE
.fAGED ABOUT 76 YEARS, I-HNDU
V' -» 2;." THARANATH PERGADE
S / O LATE SHAN PERGADE
AGED ABOUT 46 YEARS, HINDU
2
3. SR} KRISHNA @ LATI-IISI-I PERGADE
S/O LATE SHAN PERGADE
AGED ABOUT 43 YEARS, HINDU
4. SR} PADMA PERGADE
S / O LATE SITAN PERGADE
HINDU. AGED ABOUT 39 YEARS
R-1 TO R-4 ARE R/AT KOPPARA TROTA A A
PUMPWELL KANKANADYBVILLAGE,._ j; ~ *
POST KANKANADY "
MANGALORE 575 002.
(BY SR1 Ie3.L.AcHARYA_j ADV. ,' 'FOTRI RI ~21}
THIS WRIT PETITION '_I'S.FII_;ED_ U-NDER..ARTIcLES 226 AND
227 OF THE CONSTTTUTION' OF 1NI3TA.PRAy1N.O TO QUASI-I THE
ORDER DTD 18.6.09 PASSED BY :T'1L.IE"I1,_T__AI)DL. DISTRICT
JUDGE, D.K.MANGALO_RE .i3:\I"IIvI..'A.NO':A9/923 WHICH ORDER HAS
ARISEN OUT OF T:I~1E'«S1cOMMON ~ORDERIDT_D§ 14.9.07 PASSED ON
0.A.NO.VI & VII VIN ?1;Q--;_S;N_O_.4Q/ 1.9910 ON THE FILE OF 1ST
ADDITIONAL CTVIL-"JUDGE"{;SR.'DN--.) AND C.J.M. MANGALORE
VTDE ANNEXSVAAD; 1-3 RI:SI=ECTIvI:I_,y.
THIS «ON FOR DIOTATINO ORDERS
THIS DAY, TI-IE_CO{_JRT_ FOLLOWING:
ORDER
have challenged the Order, dated .18.6_.200é the In Addl. District Judge, D.K., Mangaiérg M.A.NO.9/2008 and the Order, dated 14.9.2007 I Add}. Civil Judge [SI:.{)I1.), Mangalore On _I.A<.No$.6Aand 7 in O.S.NO.4O/1996. £¢§§"?.
is 'presented;
3
2. The facts of the case in brief are that the petitioners filed the suit for partition, separate possession, etc. During the pendency of the suit, the Shantharama Pergade died on 10.5.M2Q_00.1.'"'1'he';:petitioriergrpLz»_,,.,, filed two I.As. -- I.A.No.6 for representatives of the deceasediigdefendavnt .I..."'--;x.No.?'.0' for setting aside the abatement.py_..Tu'h'e_ IrA;s..we.r§~e rejected by the Trial Court, by its coriiniori 14.9.2007.
3. Feeling' _:ag_grieyed' ' the petitioners preferred iearned Appellate Judge dismissed :*,_the 'confirming the orders of the Trial Court. "On sufieriiigr' concurrent orders, this petition
-- Kumar Shetty, the iearned counsel 0 V0""'~~"*a.ppearin:Vg petitioners submits that both the Courts "--«.5i,"below haVe=,t'aken a pedantic and hypertechnicai View of the He submits that the first defendant died on and the necessary applications came to be fiied on 10.2000. According to him, 90 days' period prescribed for 593%.
4 making these applications for bringing the legal representatives of the deceased first defendant onirecord expired on 9.8.2000. In this regard, he has notice Article 120 of the Limitation «W11i:Ci'i"
prescribes 90 days as the period of livrnitatlionl legal representatives of a deceased party on reclor;dV...._fro:{n the' date of his death. He further that Article 121, the application for setting Taside §.the"'=aba'ternent has to be made within 60 days_fron1'"the': date._oi"th:§1.p.'apatement. The date of abatem__ent~ 60 days' period expired o1n:"8'."1 a delay of few days in making thelltvsljro submission of Sri Sanath Kumar etty. " V »A _ 'lShe:tty_ also relies on a judgment passed by the Hands-1e.'sui:5rerjsn.eiA'oceurt in the case of BI-IAGWAN SWAROOP AND o14ir;«$e.s°{r. MOOL CHAND AND OTHERS, reported in A1983 355 and contends that technical rules of
-proceldure can not be given precedence over doing substantial jiistice. The Hon'b1e Supreme Court has taken the considered fififi 5 View that abatement can be set aside at any time, if sufficient cause is shown.
6. Sri Shetty sought to draw the support--«'fo.r:{n' the I-Ion'ble Supreme Court's decision V' S.B.NORONAH v. PREM KUMARI. repo-rfedl'AI12'i19so.s:siC M
193. h The relevant paragraph.*of'\VtheV"j11clgmentl' below:
"6. Pleadings are"--r;o_t legalism is not verbalisrn,' be kept in cold storage««T:tlihert._pleoadingsm'e_._construed. It is too fi'"i(3~ petition for eviction refenfed; .leas'e.::betu:een the parties which undoubtedly The application. read as that and we are clear that '~ A notbe--~smltfied by courts by sancllfying ' little as fatal flaws. The application for suffered from no verbal lacunae _ and no need to amend at all. Parties win or 1os_éi- on substantial questions, not 'technical 51"' Vtoriures' and courts cannot be 'abettors'. "
Mr. Shetty also brings to my notice the decision of I-Ion'bIe Supreme Court in the case of RAMNATII SAO 3.3%.
6 ALIAS RAM NATH SAHU AND OTHERS 'V. GOBARDHAN SAO AND OTHERS. reported in ILR 2003 KAR 514, wherein it is held that the expression "sufficient cause" wit_hin.._the meaning of Section 5 of the Limitation Act, given a liberal consideration so as.t.0__advance-1siilbstantial'»_ justice when no negligence or inaction ot_"want'of"b_oir1'a~lid.es.is imputable to a party. The refusalto con"dorie_ "would it result in foreclosing a suitor frontiplitting forth his cause. There is no presumption that'delay:3in:approaching the court is always deliberate,' Jnstglbecaiise-..th'e1*:ethis some lapse in every case'tVofldela;'yv lthepart lithe litigant concerned, the door shouldnlot he him. The relevant paragraph of the said..v_iudgii1entVis eiitracted below:
' ,.,_it becomes plain that the expression ._ within the meaning of Section 5 of the Act Drder 22 Rule 9 of the Code of any other _ sin1ilar'1~ provision should receive a liberal llgconstruction so as to advance substantial justice no negligence or inaction or want of bond '' ~----fides is imputable to a party. In a particular case whether explanation furnished would consI'itute "sufficient cause" or not will be dependent. upon €33 7 facts of each case. There cannot be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. one thing is clear that the Courts proceed with the tendency of finding fault.-ii2i1:'l1:tf'ie"i A cause shown and reject the petition by"a"'s.lip.shoyd.V order in overjubilation of disposal "-drtr)'e,_ l Acceptance of explanation.f_urnisl1ecl.. should. the rule and refusal, an excep*tion», so no negligence or inaction or "oflbona can be imputed to the defaul-ting' other hand, while considering the the'°coui'..$l--l'shoulcl not lose sight of ti"-;efact:=_that-lby"no'tftalci_rig steps within the timer right has accrued to the other not be lightly defeated by a routine-like manner.
Ho_wever,l4 talcingi avpedantic and hypertechnical the matte--r------ihe explanation furnished should ' Knot r'ejec_ted when stakes are high and/ or of facts and law are involved in the case, ,__catis'ing enormous loss and irreparable injury to theyparty against whom the lis terminates, either A ":l_° _by"~_default or inaction and defeating valuable right Atyof such a party to have the decision on merit. While "considering the matter, courts have to si.ril«:e a balance between resultant effect of the order it is going to pass upon the parties either way." &§§{ 9
10. She aiso submits that the deceased first defendant, Shantararn is none other than the maternal un<:'ic:V_of_:Ashok Shetty. it is Ashok Shetty who has sworn to in support of I.A.s on behalf of theWpetitior1e1's::'5,djjiaintifisr+..,,., She also brings to my notice that the ..
defendant cannot go nnnoticedfiny the» bare' none but the sisters of the deceased 'd_efend"antsVAi':iio.1. She submits that the invitatioriho of the obsequies } the reiatives and friends of the; She submits that Exhibit D32' defendant published in a dai1y,Vz'nam.eiy; informing the general public of his de.ath. the ifiiake of all this circumstantial and e'aridence';WSri Ashok Shetty, the third plaintiffs that he has come to know of the death theifirst defendant for the first time only after one month of passingidaway. The portion of his crosswcxamination, relied upon by the learned advocate is extracted T herein below:
10
" ..... ..None of the applicants have participated in the said 1101 day ceremony. I came to know the death of 15' defendant for the first time, afterVVoner._V' month from the date of his death neighbours of the deceased. One Baby informed me about the death... ~~We 'buff, Advocate regarding the deathilin :i:he:' 2i't~'i_V September 2000. There is teleplic1ne'faciVli'lty_e if house of 2nd applicant also got telephone offcee ' Sadananda Shettggts meets Shetty. He has left:hi's._Vuillage tuitf1ottt"irgFornring his family. I do not" ltiocurnentsr to show that left for Dubai. But he telephonedlto Vus"froin:Dr;.bai. It is false to suggest that we have comle:.V.to...icnow about the death of 151 dc_,tendantor1"the___da.te of his death itself."
.::1ea.rned counsel for the respondents. Smt. to my notice the provisions contained in Order }l of the Code of Civil Procedure to contend that an application for the eondonation of delay has to accompany the application for setting aside the abatement. if it is filed after 150 of the death of the party. The said provision is extracted herein below:
see 11 "{5} where --
(ajxxxxxxyoocxxxx
(b) the plaintiff applies after the expiry of the specified therefor in the Limitation Act, 1 it 1963}, for setting aside the abatement and'.-alsoc_,t"or'--' l the admission of that applicatio:
that Act on the ground that ivbyt such ignorance, sufficient.»cause not . application within the perioC£.:specified_ liriivthetsaid the Court shall, in considering under the said Section 5 have due"":"egord._.'to it of such ignorance, ..
12. also notice that both the Courts below have al'sl'o.hproceec1ed"obn the fallacy that no application gfor,_'tho[jhondonation"ofiidelay is required to be filed. She Court in the Case of ALPI-IONSO RAVIEER DIAS & OTHERS reported in 970(2) L3. 553. The relevant paragraph is extracted hereiilbelowz "Mr. Holla urged that the learned Civil Judge fell into an error in thinking that an application under S.5 of the Limitation Act was necessary for Qfig, 12 condoning the delay in making the application for setting aside the abatement. Elaborating contention, Mr. Holla submitted that responed-e'nt.__'_l , before the Civil Judge, died on 7-2-1ee7,,iiet,eihe ' appellant filed the applications' -on _ within 150 days from the date of hence all that was necessary l for setting aside the abaternent appellant's application thefiimitation Act was , misconceivecl; , -- A lllfnadded that the learned Civil Judgege-rred~ in in the first instance, the' the Llrnttation Act =:=*;=;e_.=<<av,av_Aaes«.:g =I=:;==:c:;;,_ » g ' I in contending that the learned».._CiL:il an error by over--looking that ., made under S.5 of the 'ditd-;"not arise for consideration at ' "
brings to my notice the decision of the 'Allahabad Court, which is also on the lines of this Court Alphonsds case (supra). The Allahabad High in the case of JATAV PACHAYAT COMMITTEE AND _'ANH(H)THER v. with ADDITIONAL DISTRICT JUDGE. Qifild 13 ETAWAH AND OTHERS, reported in AIR 2000 ALLAHABAD
253. The portion immediately below Head Note on which the learned counsel has relied upon, is extracted herein below:
"An application made after 90 days date of death, is an application for V"
upon setting aside (1b(1t€Tl'l€T_7I.~~ abatement being made within limitation, the substiiutio,n__woitldrbe after setting aside the abateVrrient,h ana;'sitherefoVre, no application expiainingt-""the 'delay filwould be necessary J such a prayer for setting aside aba.terne.nt~.iiaithin 'days from the date thesarne time the said appl:i3cationV.VV pl 0 .. maintained without the prayer for abatement. If such application aside abatement is made that event definitely an ' ;apptit:ationfl"trnder Section 5 of the Limitation Act if ._ ibould _necessary. . . ..
142. Relying on the Division Bench decision of the Kerala HighdAVg'leeurt in the case of STATE OF KERALA v. 0' ittAntmvAKURUP RAMACHANDRAN PILLAI, reported in 1999 KERALA 359. she submits that the period of limitation runs from the date of death and not from the date £ 14 of knowledge of the death. She has relied upon the same judgment for advancing another contention applications for bringing the L.R.s of the deceased' record and for setting aside the abatement do"n'otfdeserve any" .L consideration in the absence of 'an;"'applie_a'tion 'to:
condonation of delay. The relevan-t....portion is_e§ttra.cted. herein. L' below:
"5. Order XXII, inter alia_,_ procedure to be adoptedin thevic-aseofllofparties to the suit. In llule: ii '"thereof...the provisions contained u5'ill to appeals. Rule 4(5) dealsfor substitution of the legal the defendant. In the present lc'c:nt'ex.t,V llsalza-rule may be read as this : Wh.ere"the appel,lant was ignorant of the death of a could not, for that reason, makes for substitution of the legal lr'eprescnta_.--til)es of the respondent under the rule within'«;_the period prescribed in the Limitation Act, A A' i963land the suit has in consequence abated and Wilapplellant applies after the expiry of the period glspecified therefor in the Limitation Act, 1963 for setting aside abatement and also for the admission of that application under Section 5 of that Act on the figet 15 ground that he had by reason of such ignorance sufficient cause for not making the applicati»:g3V:ri--.g within the specified period in the said Act, shall in considering the application under ..the A Section 5, have due regard tomhthe fact' it ignorance ij" proved. This sub :rule...ignserte:d.' Code of Civil Procedure 11.04' V' 1976 applies only in a V.whe.re..
was ignorant of the "the.._.respon--denti§and hence he could noVt"4-applyg for lfi'?,Q.}S"LL>l9SllfutiOn in time. However the set aside abatement under Section 5 of the in such cases.
The 5 shall contain 'sufficfierit rnaking the application within' time of such ignorance. If such ignorance..is pifoued, the courts shall have due " _ while clortsidering the said application. The period of limitation runs from the date .o__t7 death and not from the date of knowledge of '' death."
The learned counsel also sought to draw the from the decision of the Hon'b1e Apex Court in the fifiii 16 case of RAGHO SINGH v. MOI-IAN SINGN AND OTHERS, reported in 2001(9) SCC 717, wherein it is held thatin the absence of an application for the condonation of barred appeal is liable to be dismissed.
16. The learned counsel submits:Ath~at;peV'en_':
without admitting, that the petit_ioners._have cagseiorig merits, the same does not coufisptitupte Vila» for the condonation of delay. point, she relied upon the decision of the le in the case of STATE OF 1_v£oHD5"BA1:xR EI EDROSS. reported 1V9'8'1- "l
3. Mr. " " contended that he had strpr1'gs..case"' forvlthe acceptance of the appeal on thatthe same should be regarded as a uery for the condonation of the delay.
con.te_n.tion is wholly without substance. The stands in the way of the appeal being .. heard-'on merits which cannot, therefore, be looked , $17. Taking support from the Hon'ble Supreme Court «decision in the case of 1). GOPINATH PILLAI v. STATE OF data.
17 KERALA AND ANOTHER, reported in 2007(2) SCC 322. she submits that the delay cannot be condoned merely. on sympathetic ground, when mandatory provisi_ons«l..'Va.r__eli7 complied With. It is held in the said cannot be condoned unless the satisfactorily and convincingly it it . 3 l
18. She brings to that the petitioners' two applications..cannot""bc::c--onsidered in the absence of application' delay is raised by the time ie, in their counter on" ' C
19. Her that this Court's interference in exercise of poweriindeii" Article 227 of Constitution of India is_,v_s_Ihen the two Courts below have passed the _ justifichatory 'conc'nrrent orders. x the course of his rejoinder, Sri Shetty submits lthle-..application for setting aside the abatement itself has __to."beftreated as the composite application for both, the setting aside the abatement and for the condonation of delay. He 38%! 18 further submits that at the most, if this Court comes to a Conclusion that the application for the condonation _ld.:el~ay is a must in this case, then liberty be reserved to the to make one such application before__the_T . L4 submits that the judgments of other ai*ef°fiot binding upon this Court. T A
21. Smt. Pushpalatha s1;brxriits"'thathlthelav} does not permit making of two prayers' .lap_p.lieation. She brings to my notice Rule of Rules of Practice, 1967. which reac§s«..as*fo3.loWs_{ 'a" separate application in respect». of each" prayer. When several prayers amcuorrnbiriedvin one application, the Court ad-eirect thelappltcant to confine the application ' ;.o'n.ly such prayers and to file a separate 2 appltcatmnirilylrespect of each of the others." .. hearing these marathon arguments, the questions fall for my consideration:
(1 ) Whether the period of limitation for bringing the L.Rs. of the deceased party runs from the actual §§a 19 date of death or from the date of knowledge of the death?
(2)1jf the answer to the above question the period of limitation starts from dated of death and if the proceedings it whether the application abatement has to accompanied by an application forA--«.the ii-:or;_d.on..ation of delay under Section 5 of the!-.-imi.ta--tion"
{3)If they iewanswered in the Trial Court was I.A.Nos.6 and 7 in the ;.absence..:oj"t.heiidilfor the condonation of delay? No (1) ~-- the Division Bench of the case of State of Kerala [supra] has n"'VV'1a,ken the rgoiisidered View that the period of limitation runs the date of death and not from the date of knowledge of 'death. Sri Sanath Kumar Shetty, the learned Counsel for T thejjetitioners may be right in contending that the decisions other High Courts are not binding on this Court; but the Efiii -
20 decisions of other High Courts have atleast the persuasive Value. It is also profitable to refer to the Hon'ble Suipreme Court's judgment in the ease of UNION or INl_}v~I:';.'§.l_t';§',_'__::ln*:§,¢_!lii.i CHARAN. reported in AIR 1964 so 215l..tltl'ppt'p~;nV'lhe_ reported case, the appellant took thei;>stap..dljthat':the. for making the application for lbringingivthe would run from the date of the death of a party. In that case, the reslponderiptdiepd on 21.07.1957 and the appellant .V_made,e"--the'~ applieatiorrv" on 17.03.1958 contending thatlre .tlie"for1ner's death only on 03.02. ilvas not accompanied by an applicationi for the abatement. The Hon'ble Supreme jflourtlllielitl thhatlthezllimitation starts from the date of lldleeeased respondent. The relevant prolkisionlsl' in para--14 of the said judgment are ""'e:>d:racted._hereinlielow:
V pp It appears to be due to such an attitude of "1'Ag}16_l. jlfiippellant that the application dated March 17, {sic} 1958 purported to be simply under R4 of O.XXII "and did not purport to be under R9 of the said Order as well and that no specific prayer was made for 33%.
22
25. Considering the unmistakable interpretation of Article 120 of the Limitation Act received at the hanvdws'-.o'f..the Hon'ble Supreme Court, Kerala High Court High Court, I answer question No.1 by..ho_14din_g"that_jvth'e peVriod"* . of limitation of for brining the legal.' deceased party on record is Qtlfidays lfiiom df h1s'»' death. Knowledge of deathgzhas invvregelrd to the operation of Article 120. 'A H 'V pp
26. In Re-qnestion reading of the provisions l4_ (b) of C.P.C shows that an -aside the abatement has to be accompanied 'Wan for the condonation of delay tinder of the,__Lin1itation Act. The issue is no more ré;~:._ 'integrav..__"~,l't,,l:'i's._ covered by the Allahabad High Court Panchayat Committee's case (supra), _fiAe~.._w'llerein aisjheld that, if an application for setting aside the is made after 150 days of the death of a party, A. V--V:,"id,_eiinitely an application under Section 5 of the Limitation Act 'l:u"lislnecessajy. Similarly, the Division Bench of Kerala High "Court in the case of State of Karala (supra) has held that an £3295 23 application for the substitution of the legal representatives of the deceased defendant filed beyond the period of prescribed limitation has to be accompanied by two application's.l.__}F application for setting aside the abatementi»V-aii.d"'~:another~itl'~-- application for the condonation of d.ela};~ufnder the Limitation Act. _ _V V _ p
27. My reasoned perusal of».this Cou.rt's"ljudgment in Kamataka Bank case 3. reveals that the provisions contained in sub--._f1_1l.e 4 of Order 22 of C.P.C were not it at' all; 'Hence, with utmost respect to ""sa'3/"that the said judgment is to be treated as the per incurrium. Total period of Zliimitatioii. togethereunder Article 120 and 121 is 150 days..:.l'HVeneel'al_fter ---lapse of 150 days from the date of death, plaifitiffs.'oi_ the petitioners have to necessarily invoke Section 5 the Limitation Act. Thus, I answer the second holding that an application for the condonation of . under Section 5 of the Limitation Act is certainly Viicl.:_:l'»»n.ecessary when the application for setting aside the i abatement is filed beyond 150 days from the date of death of 55% 24 the defendant. If no such application is made, the abatement stands. If no application under Section 5 of the Lirnittation Act is filed, mere filing of applications to set abatement and irnpleading the legal:r'epresentati\resxtarey. not' sufficient. An application to condone'1'the.'_A_d'e1ay"ei$ipi.aining..Atheu reasons for delay must also be
28. In Re-question' of my answering questions Nos.1 and? that the entire exercise nuliity. The Trial Court without embarking upon any enq1--rti'rysa's» 'the petitioner «~ plaintiffs were prevented by s"c1ffieient_ making the said I.A.s. . Though jnstioe is more important than the law itseif. to be administered according to law only, heid~._ by' ' Supreme Court in the case of LIFE " " CORPORATION or mum v. ASHA AMBEKAR. reported in AIR 1994 so it 2:'d1'48';tVJustice according to law is a principle as old as hilis. '"<.The Courts are to adrniniste law, however inconvenient it 25 may be. But on whether sympathetic consideration has to weigh with the Courts, the Supreme Court has this.jto:'fsl_éty_ in para 13 in Life Insurance Corporation case: A A A A "13. The Courts should endedvouif "to whether a particular case in considerations are to be ~fotl.s ui:itii,in..._Vthe3 scope of law. Disregardful the case may be, it shoLald...nevebr'lbeneeliifitie,, .... by
14...
15. It be pitiable situations, .:l5ut"'"en '"§t.,l1ci't'--score, the statutory provisions e'avnn,ot« be pill-1'..,CI.s icle. "
30. It il"'se.__ais,o to refer to the judgment of the v_Hon'bIe»'-;Si.1preVmel.A "Co1,irt,in the case of RAGHUNATH RAI OTHER V. PUNJAB NATIONAL BANK AND repesteallin (2007) 2 sec 230, wherein it is held in easegof conflict between the law and equity, it is the has to prevail. The relevant portion is at para 29 of it judgment, which is extracted below:
"29. Learned Counsel for the respondent Bank submitted that it will be very unfair if the appellant 335:
26
who is a guarantor of the loan, and Director of the Company which took the loan, avoids paying debt. While we fully agree with the learned that equity is wholly in favour of the is Bank, since obviously a bank should be it recover its debts, we must, hou_iever,lyls_tate well settled that when there is a between V' and equity, it is the lawllwihich IO.VV}KV3!'f.':('3l5tZlll'l,' accordance with the Latin "dura. 'le.ac_sedf?lex", which means "the is it _ is the law".
Equity can only supplenientj'the it cannot supplant or override it, " V' l
31. The for consideration by the Trial ha-sltramed the following point:
it 5':Wl"iether" application filed on _ * ~ behalfv..of°'the llplaintmsapplicants under order Rule a'nci'order 22 Rule 4 r/ w Section 151 ~ to bring the L.Rs of the deceased A No.1 by condoning the delay is ,_rnaintainable?"
.. lb The point calling for consideration by the Trial "ought to have been whether I.A.Nos.VI and VII are L4 l " ' V ' V . it delay?
it eyrite-1'ts.inab1e in the absence of an LA for the condonation of 595%.
27
33. The Trial Court does not appear to have paid attention to the specific objections taken by the resvpon.d*ents in their counter filed on 13.12.2001. The indeed observe that it is not known whythep'etitione'rs_§haveu' not filed appiication under Section But it has proceeded to consider'-th~e_pcase of the '-petitioiiers on' V the presumption that the,.-appIicatior_i-- under Se'ctiovr§1 5 of the Limitation Act is not a strict
34. The Appe.!.¥ate Couvrtjjhas_gone_ one 'step ahead and has heid that any application under Section Act. The Appellate Court thereafter holutdspthatt not'._s'u.tt.icient grounds are made out for Vco.ndonV_i1i:g _deI.ay;-T.h.us both the Courts have overlooked the '1na'teria}Caspec-t of the matter by considering I.A.Nos.VI eveii'j__Vv§vhen there was no application for the _:d_f_~.pcondonatiporifiof delay. Their orders are therefore liabie to be s_et:d.a:3.ide""and accordingiy they are set aside. The lapse in the observance of the procedural law not be ignored or excused or overlooked. I.A.No.VI and éfiit.
28 VII ought not to have been taken up on merits routinely or mechanically. The filing of I.A.No.6 and 7 without.vfil_in_lg-w.the LA. for the condonation of delay has to consequences of non--compliance of the..l.a_iw of
36. If the petitioners now r_nake* applieation 'th:e"*, condonation of delay in filing thevfvlappplication setting aside the abatement, then thedel'-ay from the date of expiry of 150.daysAfro.in:Vthe@dpat'e"of death of the 1s:
defendant till :£the:"'a:pplieation for the condonation of make an application
for the for the Trial Court to satisfy itself of the causfe..for._thiepetitioners' failure to apply for the virn_plead'rt;.ent' of the "legal. representatives of the deceased first de-f.e'11.dan1;_ 'setting aside the abatement within the time If"i-vprescrihed. yvorthwhile to refer to para--9 of the Hon'ble _L'_--«.Suupreme Go'u;rtV's judgment in the case of UNION OF INDIA v. (supra). It runs as follows:
2 "9. It is true, as contended, that it is no duty of if the appellant to make regular enquiries from time to time about the health or existence of the opposite fifiiii 29 party, but it does not mean that the mere fact of the appellant's coming to know of the respondents death belatedly will, by itself, justify his appltlcation for setting aside the abatement. That is taut Ihfle 9 qrclxdarqfthe codexequeee gee 7;' plaintiff to prove that he was prevented. V suflicient cause from continuing-It;the::Asttit;._[ _ allegation about his not eoming__ it of death of the opposite partyllisnot to state reasons which, accoltd-ing--..to him,-tiled his not knowing of the'deVath.'_VAof within reasonable time and to--e_stab'lish~.:ttto;se"reasons to the satisfacagin -of when the correctness; "of . 'th;0se'~ . challenged by the legalmepresentatives"of--- the deceased who have securedxa valttable ion the abatement of the suit'? LA appiicanltllevparties have to show that the delay in is not for the reasons which indicates wt1i2.teir the matter. However, what would be such \:ro1tlCi" depend upon the facts and circumstances of each fifitf.
30
38. With the liberties reserved and the observations made in the preceding paragraphs hereinabove, this petition is allowed setting aside both the orders. While a11ow.i_ng_d'trhis petition, it is also the Courts anxiety that should not be put to any inconvenie.nee..for the part of the petitioners. Unnecessariiy are the prolongation of the suit of they M.A.No.9/2008 and thereafter,ether;'presentin§._,.of'isthis writ petition. All these are on i'th'eLv"'petitioners' filing applications whici";"were not rnaintainable' in the absence of the deiay. I therefore deem it just and"'nuecessary»A:_tjVtod'i:n'pnse cost of Rs.10,000/~» which shall begpaid petitioners' side to the respondents Within 2 frorn today.
Sd/-* JUDGE __vGR);3sV/VB/Bsc