In a couple of matters filed before the Tripura High Court regarding a title suit filed by the plaintiff to declare his right, title and interest in the suit schedule property as well as for recovery of possession of the same, a Single Judge Bench of Chief Justice M.S. Ramachandra Rao allowed the matters and set aside the impugned judgments.
The Trial Court had decreed the suit ex parte on 22.08.2023 after the defendants’ counsel withdrew from the case without their knowledge. The defendants subsequently filed a title appeal along with an application to condone a delay of 23 months and 8 days. During the pendency of this application, the second defendant died, and his legal heirs filed for substitution. The District Judge dismissed the substitution application because it was not accompanied by a separate delay condonation petition, and further dismissed the main appeal, holding that the reasons for delay in filing the appeal were vague and unsatisfactory.
The District Judge stated that it was the duty of the litigants to remain vigilant and follow up their case, and in case of difficulties, engage another counsel. It was also noted that no complaint had been lodged before any competent authority against the defaulting counsel and that the explanation offered for the delay was doubtful. It was held that court orders are available on the official website and that the plea that the defendants remained unaware for a long period was untenable in the present digital era.
The Court noted that the counsel engaged by the defendants had filed a petition on 09-12-2022, praying for exemption from conducting the trial on the pretext that they were unable to communicate with the defendants for a long time, and it was allowed on 01-02-2023. In that order, the trial court directed the plaintiff’s side to file requisites for issuing summons upon the defendants within three days.
Even though this direction was not carried out by the plaintiff by paying process fee, the trial court ignored the lapse and stated that since the defendants had already filed a written statement, the suit would proceed ex parte. The Court stated that the filing of these applications and pursuing of the same diligently by the defendants should have been taken note of by the District Judge while considering the application under Section 5 of the Limitation Act.
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After considering Articles 120 and 121 of the Limitation Act, the Court found it to be clear that if during the pendency of a suit/appeal, a party dies, his/her legal representatives should be brought on record within 90 days. If not, the suit/appeal abates. It was said that even though abatement occurs, there is still 60 days’ time to seek setting aside of the abatement. If they file an application for substitution of deceased party before 60 days, they need not file an application under Section 5, seeking to set aside abetment.
The Court stated that the District Judge erred gravely in presuming that the legal representative of the deceased second defendant should file an application under Section 5 to condone delay in filing the substitution application. It was held that the dismissal by the District Judge was patently illegal and amounted to refusal to exercise jurisdiction vested in the District Judge, warranting interference under Article 227 of the Constitution.
The Court stated that the appellants in the title appeal were senior citizens and that one of them was allegedly of unsound mind, whose counsel had abandoned them. It was said that even though there is a website on which litigants are expected to verify the case stages, persons who are not technologically savvy cannot be penalized for not doing so.
Hence, the Court opined that the defendants were victims of circumstances and it cannot be said that they had adopted dilatory tactics, that they wanted bona fides, or were guilty of deliberate inaction. It was held that it would be travesty of justice to deny them even one opportunity to contest the matter on merits. Consequently, the Court set aside the impugned orders, allowed the substitution of legal heirs, condoned the delay in filing the appeal, and restored the title appeal for a decision on merits within 4 months. The pending decision in the title appeal on the file of the Civil Judge (Sr. Division) was stayed.
