Swami Prasad & Anr vs Lakhan Singh(D) & Ors. Tr.Lrs

SWAMI PRASAD & ANR. .......APPELLANT(S)

Vs

LAKHAN SINGH(D) & ORS. THRO' LRs. .....RESPONDENT(S)

O R D E R

Leave granted. Heard the learned counsel.

2. The appellants in Second Appeal No.25 of 1993 on the

file of the High Court of Madhya Pradesh, Jabalpur are the

appellants before us. The said Second Appeal, filed in 1993,

after admission, was pending final hearing and was not being

listed for hearing before the Court periodically. It is

stated that the first respondent died on 28.5.1998. The

appellants claim that they were unaware of his death.

Nearly eight years later, on 1.8.2006, the counsel for the

first respondent informed the Court about the death of his

client. Unfortunately on that day, the counsel for the

appellants was not present, and consequently the appellants

were unaware of the death of the first respondent even after 2

1.8.2006. On 9.8.2007, the appeal was dismissed as having

abated as the legal representatives of the deceased first

respondent were not brought on record within the time

prescribed. When the appellants came to know about it, they

filed an application for setting aside the abatement and

consequential restoration and to bring the legal

representatives of the deceased first respondent on record.

Those applications were dismissed by the impugned order

dated 19.9.2008.

3. In Perumon Bhagvathy Devaswom vs. Bhargavi Amma -

2008 (8) SCC 321, this Court has held that where a

respondent dies during the pendency of the appeal, at a time

when the appeal has been pending for several years without

being listed for hearing, the Court should take a lenient

view in considering the application for condoning delay and

setting aside the abatement. This is more so because the

counsel for first respondent informed the court about the

death of first respondent (which was on 28.5.1998) only on

1.8.2006 nearly eight years after the death. The material

showed that the appellants had no knowledge about the death.

4. We find that the appellants have explained the delay

in filing the application for abatement. The appellants'

counsel was absent on 1.8.2006, when first respondent's 3

counsel informed the court about the death and therefore the

delay after 1.8.2006 is also explained. On the facts and

circumstances, we consider this a fit case where the High

Court ought to have set aside the abatement.

5. We, accordingly, allow this appeal, set aside the

impugned order dated 19.9.2008, restore the second appeal to

the file of the High Court, set aside the abatement by

condoning the delay and permit the appellants to bring the

legal representatives of the deceased first respondent on

record. We request the High Court to dispose of the second

appeal expeditiously.

........................J. ( R.V. RAVEENDRAN )

New Delhi; ........................J. March 08, 2010. ( K.S. RADHAKRISHNAN )