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State Of Gujarat v. Sayed Mohd. Baquir El Edross .
Factual and Procedural Background
The sole respondent in the appeal died on December 10, 1978. On February 20, 1979, an application filed in a connected appeal (Civil Appeal No. 2132 of 1977) informed the Court of the respondent’s death, and a copy of that application was served the same day on the clerk of counsel for the appellant State. Despite this notice, no step was taken in the present appeal until August 29, 1979, when the appellant applied to bring the deceased respondent’s legal representatives on record. That application was not accompanied by any affidavit explaining the delay; such an affidavit was filed only on March 4, 1980. Because no substitution application was filed within 90 days of death, the appeal abated on March 11, 1979, and the subsequent application to set aside the abatement was filed well beyond the limitation period.
Legal Issues Presented
- Whether the inordinate delay in applying to set aside the abatement of the appeal should be condoned under the Limitation Act.
- Consequently, whether the abatement of the appeal ought to be set aside and the appeal restored for a hearing on the merits.
Arguments of the Parties
Appellant State’s Arguments
- The delay in filing the application to set aside the abatement should be condoned.
- The appellant purportedly has a strong case on the merits, which should be considered a compelling reason to excuse the delay.
No arguments from the respondent’s side are recorded because the sole respondent had passed away.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The Court noted that, under Article 121 of the Limitation Act, an application to set aside an abatement must be filed within 60 days after the abatement occurs. Here, the appeal abated on March 11, 1979, yet the appellant filed the requisite application only on August 29, 1979—more than three and a half months late—and without an accompanying affidavit. The Court found:
- The appellant’s counsel received explicit notice of the respondent’s death on February 20, 1979. This knowledge is imputed to the appellant State.
- No satisfactory explanation—“good, bad or indifferent”—was offered for the failure to act between February 20 and August 29, 1979, or for the additional delay until March 4, 1980 in filing an explanatory affidavit.
- The appellant’s assertion of having a strong case on merits cannot in itself constitute “sufficient cause” to condone delay when the statutory periods under the Limitation Act have been ignored.
Accordingly, the Court held that no sufficient cause had been shown to justify condonation of delay or setting aside the abatement.
Holding and Implications
The application to condone delay and set aside the abatement was refused; the appeal was dismissed.
Direct Effect: The dismissal leaves the abatement intact, conclusively terminating the appeal. The decision turns entirely on procedural default and establishes no new substantive precedent.
1. The sole respondent in this appeal died on December 10, 1978. He was also arraigned as an appellant in the connected appeal (Civil Appeal No. 2132 of 1977) in which an application was made on February 20, 1979 stating the factum and the date of the demise. A copy of that application was delivered on the date last-mentioned to the clerk of learned counsel for the appellant State, who, however, took no step to move the Court for having the legal representatives of the deceased respondent brought on the record in the present appeal till August 29, 1979 when an application was made for that purpose, but without being accompanied by any affidavit containing averments as to why the inordinate delay in filing the application should be condoned. An affidavit of the type just mentioned was filed in Court on March 4, 1980.
2. It is common ground between the parties that on the death of the sole respondent to the appeal the right to sue survived to his legal representatives. No application having been made within 90 days of the death, the appeal abated on March 11, 1979 and an application for having the abatement set aside could have been made within the period of 60 days following that date (Article 121 of the Limitation Act). The application actually made in that behalf was thus time-barred by more than three months and a half. Mr Phadke, learned counsel for the appellant does not dispute this proposition. He urges, however, that the delay in making the application last mentioned should be condoned and the abatement of the appeal set aside. No sufficient cause, however, for the condonation of the delay is made out from any material on the record. As pointed out earlier, the clerk of the learned counsel for the appellant was served with a copy of the application dated February 23, 1979 on that date itself and no reason, good, bad or indifferent is assigned for the failure of that counsel right from February 20, 1979 to August 29, 1979 to move the Court till August 29, 1979 either for having the legal representatives of the deceased brought on the record or for having the abatement set aside after it had taken place. His knowledge of the death of the respondent must be attributed to the appellant State also and his negligence in not moving the Court in time must be deemed to be that of the appellant.
3. Mr Phadke also contended that he had a strong case for the acceptance of the appeal on merits and that the same should be regarded as a very good reason for the condonation of the delay. The contention is wholly without substance. The abatement stands in the way of the appeal being heard on merits which cannot, therefore, be looked into.
4. No grounds for the condonation of the delay having been made out we refuse to set aside the abatement. The appeal is accordingly dismissed.
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