MUNICIPAL CORPORATION Vs. SAGARMAL AND ORS.

JUDGEMENT

(1.) Shri Rajendra Shrivastava, learned counsel for the appellant. Shri A. Vikas, Advocate on behalf of Shri Sunil Jain, learned counsel for the respondent No. 2.

(2.) Learned counsel for appellant submits that respondent No. 1 has expired, therefore, for substitution of his legal representatives the appellant has filed this application. Appellant could not file the application in time as the appellant is a Municipal Corporation and its employees were busy in the election. Meanwhile, appeal against the respondent has abated, therefore, the application for setting aside the abatement has been filed along with the application for condonation of delay. It is true that there is some delay in filing the application. The delay is bona fide, therefore, it may be condoned. He submits that the delay has been satisfactorily explained. The Hon'ble Apex Court in the case of D.D. Vaishnav v. State of M.P., 2009 AIR(SC) 2170 has condoned the delay of 589 days. He further submits that in case this Court reaches to the conclusion that the appeal has abated against respondent No. 1, even though the question as to whether the appeal has abated in toto, should be left open for the final hearing in this appeal. For this purpose, he placed reliance on the decision of this Court in the case of Mahadeo v. Deo Chand, 2015 1 MPHT 441.

(3.) On the other hand, learned counsel for respondent No. 2 vehemently opposes the prayer and submits that the respondent No. 2 had filed an application (I.A. No. 6363/2013) under Order XXII Rule 10 of Civil Procedure Code on 7-10-2013 informing that the respondent No. 1 has died on 15-7-2013. Even though, the appellant has not filed the application for substitution of legal representatives on record in time. The application under Order XXII Rule 4 was filed on 21-7-2014, whereas the application under Order XXII Rule 9 has been filed on 25-2-2015. Thus, the appellant has not shown any sufficient cause for condonation of delay and for setting aside the abatement. He further submits that the Government departments are under special obligation to ensure that they perform their duties with diligence and commitment and unless the Government departments have reasonable and acceptable explanation for the delay, only then the delay can be condoned. For this purpose, he placed reliance on the judgment of Apex Court in the case of Office of Chief Post Master General v. Living Media India Ltd., 2012 AIR(SC) 1506