ABDUL KHALEEL AHMED @ GANG KHALEEL SAB AND SRI. IMTIYAZ Vs. SAYED USMAN SAB, SMT. MEHABOOBI, SMT. KATMUNNISSA AND SMT. ATHAFUNNISA

JUDGEMENT

(1.) IA -I/2012 is to condone the delay of 2433 days in filing IA -K/2012 to set -aside the abatement, while IA -III/2012 is filed to bring on record the legal representatives of deceased Respondent No. 2 who is reported to have died on 5.6.2005. In the affidavit accompanying IA -I/2012 the legal representative of the second appellant submits that aggrieved by the Judgment and decree dated 16.1.2010 in RA 21/2008 of the II Addl. Civil Judge (Jr. Dn.), Davangere confirming the Judgment and decree dated 14.6.2005 in O.S. 258/96 of the Prl. Civil Judge (Jr. Dn.) and JMFC, Channagiri, dismissing the Suit, has preferred the second appeal. According to the deponent the second appeal when listed for admission, on 15.4.2011 notice was ordered to the respondents and it is only when the RPAD was returned with the postal endorsement that Respondent No. 2 is 'dead', that steps were taken immediately to file applications on 27.2.2012. It is further stated that the deponent came to know that the 2nd respondent died on 25.6.2005 which was not brought to the notice of the lower appellate court as the deponent did not have knowledge to file application to bring the legal representatives on record. It is stated that in the absence of there being no deliberate or intentional lapse, the delay requires to be condoned. Similar are the affidavits enclosed to the IA -II and IA -III of 2012. Heard the learned counsel for the applicant and the opponents and perused the pleadings. There can be no dispute that appellants and respondents are residents of the very same village, known as Tavarekere in Channagiri taluk (of Davanagere District and belong to the very same community, while the Suit instituted is for declaration, partition and separate possession of assets belonging to the members of the same family governed by the Muslim Law of succession. In the circumstances, the contention that the applicants had no knowledge of the death of the 2nd respondent, one of their own brother from the very same village in the year 2005 is unacceptable. Merely because Respondent No. 2 died in the year 2005 and legal representatives were not brought on record in RA 21/2008 or in O.S. 258/1996 during their pendency, it cannot be canvassed that the judgment and decree of dismissal of the Suit for the reliefs noticed supra, is void calling for interference.

(2.) IT is no doubt true that the courts have evolved a principle that delay should be condoned with a liberal attitude, while at the same time, it is also true that on certain occasions courts have taken a different view, rather a stricter view, in any event if the explanation was not satisfactory have dismissed the applications. Therefore, there is no straight jacket formula to be applied to all cases uniformly, without reference to peculiar facts and circumstances of a given case. This aspect of the matter came up for consideration before the Apex Court in Balwant Singh (Dead) vs. Jagdish Singh & Others : AIR 2010 SC 3043, whence it was observed that the expression 'sufficient cause' under Section 5 of the Limitation Act (36/1963) in the matter of condonation of delay, implies legal and adequate reasons meaning thereby adequate enough so much as may be necessary to answer the purpose intended. In the words of the learned Judges, it is said: