D.M. Chandrashekhar, J.
1. The principal question that arises for determination in this appeal is whether an appeal will lie from an order declining to set aside the abatement of an appeal.
2. The appellant herein was also the appellant in R.A. No. 104 of 1965 on the file of the Civil Judge at Udipi. During the pendency of that appeal, respondent 1 therein died on 7-2-1967. On 5-6-1967 the appellant made an application under Order 22, Rule 4 read with Rule 11, C. P. C. for bringing on record the legal representatives of deceased respondent 1. Along with that application he made an application under Order 22, Rule 9, C. P. C. praying for setting aside the abatement of the appeal and another application under Section 5 of the Limitation Act purporting to be for condonation of delay in presenting the application for setting aside such abatement.
3. The learned Civil Judge dismissed the application under Section 5 Of the Limitation Act, holding that there were no sufficient grounds for condonation of delay. He further held that consequently the application for setting aside the abatement of the appeal and the application to bring on record legal representatives of deceased respondent 1, did not survive and that the appeal had already abated under Order 22, Rule 3, (Rule 4?), Civil P. C. Against the orders of the learned Civil Judge on these three applications, the appellant has preferred this appeal purporting to be under Clause (k) of Rule 1 of Order 43, Civil P. C.
4. Mr. K. R. D. Karanth. learned counsel for respondents 2 and 4 to 8, raised a preliminary objection that this appeal is not maintainable under Order 43, Rule 1 (k). Civil P. C. Elucidating his contention. Mr. Karanth submitted that an appeal lies under Order 43. Rule 1 (k) Civil P. C., only from an order refusing to set aside the abatement of a suit and not from an order declining to set aside abatement of an appeal.
5. On the other hand, Mr. B. P. Holla, learned counsel for the appellant, contended that an appeal is maintainable under Order 43, Rule 1 (k), Civil P. C. from an order refusing to set aside the abatement of an appeal also.
6. In order to appreciate these rival contentions, it is useful to set out the relevant provisions of the Code of Civil Procedure.
7. The material part of Sub-section (1) of Section 104 reads:
Section 104(1). An appeal shall lie from the following orders, and save as otherwise provided in the body of this Code, or by any law for the time being in force, from no other orders;
(a) to (f) (annulled).(ff) ......(g) ......(h) ..... .(i) any order made under rules from which an appeal is expressly allowed by rules.....
8. Rule 3 (1) and Rule 4 (1) of Order 22 provides for the legal representative of a deceased plaintiff and the legal representative of a deceased defendant respectively being made a party to the suit on an application being made in that behalf.
9. Sub-rule (2) of Rule 3 of Order 22 provides that where within the time limited by law no application is made under Sub-rule (1) of that Rule, the suit shall abate so far as the deceased plaintiff is concerned.
10. Likewise, Sub-rule (3) of Rule 4 of Order 22 provides that where within the time limited by law no application is made under Sub-rule (1), the suit shall abate as against the deceased defendant.
11. Sub-rule (2) of Rule 9 of Order 22 provides that the plaintiff or the person claiming to be the legal representative of a deceased plaintiff may apply for an order to set aside the abatement and that if it is proved that he was prevented by any sufficient cause from continuing the suit, the court shall set aside the abatement.
12. Rule 11 of Order 22 reads:
11. Application of Order to appeals:
In the application of this Order to appeals, so far as may be the word 'plaintiff' shall be held to include an appellant the word 'defendant' a respondent, and the word 'suit' an appeal.
13. The material part of Rule 1 of Order 43 providing for appeals from orders, reads:
Order 43, Rule 1 An apeal shall lie from the following orders under the provisions of Section 104, namely:
(a) xx xx
(k) an order under Rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit.
14. Mr. Karanth contended that Clause (k) of Order 43, Rule 1, Civil P. C., providing for an appeal from an Order refusing to set aside the abatement or dismissal, speaks of a suit but not of an appeal and that hence, no appeal is provided under that clause from an order refusing to set aside the abatement of an appeal. On the other hand, Mr. Holla contended that the word 'suit' occurring in Clause (k) includes an appeal.
15. The question whether an appeal lies under Order 43, Rule 1 (k) from an order refusing to set aside the abatement in an appeal, turns on the interpretation of the word 'suit' occurring in that clause.
16. The word 'suit' has a narrow meaning as well as a wider meaning. In its wider meaning, it includes an appeal also because an appeal is in a sense, continuation of a suit.
17. There is conflict of judicial opinion on the question whether the word 'suit' occurring in Order 43, Rule 1 (k) includes an appeal and consequently whether an appeal lies thereunder from an order refusing to set aside abatement of an appeal.
18. The High Courts of Patna, Madras and Nagpur have taken the view that such an appeal lies, while the High Courts of Calcutta, Allahabad, Gujarat and Punjab have taken a contrary view.
19. In Akkas Mia v. Abdul Aziz : AIR1929Cal532 a Bench of the Calcutta High Court said that whereas Order 22, Rule 11 provides only for the application of that Order to appeals and that in doing so states that the word 'suit' be held to include an appeal, there is nothing in Order 43, Rule 1 (k) which enables us to apply the word 'suit' to an appeal.
20. In Mahboob Hasan Khan v. Syed Bashir Husain : AIR1961All527 , Nasrulla Beg, J.. said that a reference to the provisions of Order 22 Rule 11, Civil P. C., would show that where it was the intention of the Legislature to include appeal in the word 'suit', the Legislature expressly provided for the same, and that in the absence of a similar provision in Order 43, the word 'suit' occurring in Clause (k) of Rule 1 of that Order should not be interpreted to include an appeal.
21. In Sat Pal Rameshwar Dial v. Budha Lalji this is what Gurdev Singh, J., said at p. 72:
'The Legislature, while enacting Order 43, was fully conscious of the fact that Rule 9 of Order 22 applies not only to suits but to appeals as well .....All the same, the legislature did not provide an appeal, while making the provision in Clause (k) of Rule 1 of Order 43 of the Civil Procedure Code, against every order passed under Order 22, Rule 9 of the Civil Procedure Code, but explicitly confined the right of appeal in that clause against an order refusing to set aside the abatement or dismissal of a suit as distinct from an appeal. If the intention of the Legislature was that the right of appeal should be available even against orders refusing to set aside abatement or dismissal of appeals as distinct from suits, it could have very well stated so in Clause (k) by adding the words 'or appeals' at the end of this clause. If it did not do so, the intention obviously was not to provide an appeal against the order refusing to set aside abatement of an appeal. It is again significant that there is no provision in Order 43 similar to the one contained in Rule 11 of Order 22 of the Civil Procedure Code, by which the reference to suits in this Order can be deemed to include appeals nor is there anything in Order 22, Rule 11 itself which can extend the operation of that order to appeals for the purpose of Order 43 of the Civil Procedure Code.'
22. Similar is the reasoning of a single Judge of the Gujarat High Court in Dahyabhai Mathurbhai v. Bhaishankar : AIR1963Guj258 .
23. I shall set out briefly the reasoning of the High Courts which have taken the contrary view.
24. In Mir Wajid Ali v. Fagoo Mandal AIR 1938 Pat 125, a Bench of the Patna High Court said that if R. 11 of Order 22 applies to Rule 9 of that Order, it would be difficult to read Order 43, Rule 1 (k) without reference to Rule 11 and that when there is an appeal from an order refusing to set aside abatement in a suit, it cannot be said on a parity of reasoning that there is no appeal from similar order in an appeal. Their Lordships also pointed the following anomaly that would result from holding that no appeal lies from an order refusing to set aside abatement of an appeal. If the court refuses to set aside abatement of an appeal, no further proceedings can be' taken in that appeal and the matter cannot be raised by preferring a further appeal to the High Court because there will be no decision on merits when once the appeal has abated and there is nothing to be done in the further appeal.
25. In Raju Mudali v. Chinnaraju Naidu, AIR 1941 Mad 51, King, J., said that the expression 'refusing to set aside abatement or dismissal of a suit' is merely a compendious way of referring to the provisions of Rule 9 of Order 22.
26. His Lordship added that it would be contrary to all rules of logical interpretation if the word 'suit' in Clause (k) of Rule 1 of Order 43 is to bear a different meaning from what it bears in Order 22, Rule 9, Civil P. C.
27. The reasoning of the Nagpur High Court in Ganapath Bapuji v. Shri Maruti Deosthan, AIR 1952 Nag 181 is on the same lines as in the above decisions of Madras and Patna High Courts.
28. In Nachiappa v. Subramaniam Chettiar : 2SCR209 the Supreme Court had to construe the word 'suit' occurring in Section 21 of the Arbitration Act, 1940. Before that Act was enacted, arbitration in pending suits was governed by Schedule II to the Code of Civil Procedure.
29. Para 1 of that Schedule read: 1. Where in any suit all parties interested agree that any matter in difference between them shall be referred to arbitration, they may at any time before judgment is pronounced apply in writing to the court for an order of reference.
30. The wordings of Section 21 of the Arbitration Act, are substantially the same.
31. In Nachiappa's case : 2SCR209 it was contended before the Supreme Court that an order of reference can be made only by the trial court and not by the appellate Court. Repelling that contention, Gajendragadkar, J., (as he then was), who spoke for the Court, said that proceedings in appeal are continuation of the suit, that speaking generally, as prescribed by Section 107, Civil P. C. the appellate Court has all the powers of the trial court and canvperform, as nearly as may be, the same duties as are conferred and imposed on the trial court and that prior to passing of the Arbitration Act, the long-standing practice of Indian Courts was to refer to arbitration disputes pending before the appellate Court between the parties to the appeal, and that having regard to the fact that the words used in Section 21 of the Arbitration Act are substantially the same as those used in para 1 of Schedule II to the Civil P. C., the word 'suit' in Section 21 cannot be construed in the narrow sense of meaning only the suit and not an appeal.
32. In the light of the aforesaid observations of the Supreme Court, the word 'suit' in Clause (k) of Rule 1 of Order 43, C. P. C., should, in my opinion, be interpreted to include an appeal and the view taken by the High Courts of Madras, Patna and Nagpur on this point should be preferred to the view taken by the High Courts of Calcutta, Allahabad and Punjab and Haryana. Hence the. preliminary objection of Mr. Karanth as to the maintainability of this appeal under Order 43, Rule 1 (k), C.P.C., should be overruled.
33. Mr. Holla urged that the learned Civil Judge fell into an error in thinking that an application under Section 5 of the Limitation Act was necessary for condoning the delay in making the application for setting aside the abatement. Elaborating his contention, Mr. Holla submitted that respondent 1 before the Civil Judge, died on 7-2-1967, that the appellant filed the applications on 5-6-1967, within 150 days from the date of the death that hence all that was necessary was an application for setting aside the abatement and that the appellant's application under Section 5 of the Limitation Act was misconceived. Mr. Holla added that the learned Civil Judge erred in taking up, in the first instance, the application under Section 5 of the Limitation Act which was wholly unnecessary.
34. In the course of his order dated 16-3-1963, in the main appeal, the learned Civil Judge has stated that he has dismissed R. I. A. No. 287 of 1967 made under Section 5 of the Limitation Act as there were no sufficient causes to condone the delay, and that automatically the other applications R. I. As. Nos. 288 and 291 of 1967, for setting aside the abatement and to bring the legal representatives on record, did not survive at all. Though in his order dated 16-3-1968 made on R. I. A. No. 287 of 1967 there are a few observations as to whether the appellant was prevented by sufficient cause from bringing the legal representatives on record in time, the conclusion of the learned Civil Judge was that the application under Order 22, Rules 4 and 9, Civil P. C., should fail consequent on the application under Section 5 of the Limitation Act (for condonation of delay) being dismissed.
35. I think Mr. Holla is right in contending that the learned Civil Judge fell into an error by overlooking that the application made under Section 5 of the Limitation Act did not arise for consideration at all and that what he had to consider was whether the appellant was prevented by sufficient cause from making in time the application for the substitution of the legal representatives of deceased respondent 1.
36. However, instead of directing the learned Civil Judge to decide the question whether the appellant was prevented by sufficient cause from making in time the application for substitution of the legal representative, I shall myself decide that question, as the appellant has already adduced evidence in support of his application under Order 22, Rule 9 (2), Civil P. C.
37. The appellant stated in his evidence that he was suffering from dysentery from 23-5-1967 to 4-6-1967 that he was treated during that period by Dr. Bian D'Souza in the hospital at Kalyanpur which is about a mile from his village and about 4 miles from Udipi, and that till 5-6-1967 he could not walk to Udipi and meet his lawyer to instruct him to prepare the application under Order 22, Rule 4, Civil P. C. Exhibit P-1 is the Medical Certificate issued by the said doctor who is stated to have gone out of India subsequently.
38. P. W. 2, the compounder of that hospital, has spoken to the handwriting of that Doctor. It was elicited in his cross-examination that an outpatient register had been maintained in that hospital and that if any person took medicine in that hospital as an outpatient his name would be entered in that register.
39. The learned Civil Judge has drawn an adverse inference against the appellant for not summoning the outpatient register for the relevant period. I think the mere non-production of that register, would not be a sufficient ground to disbelieve the evidence of the appellant which is corroborated by the medical certificate.
40. The learned Civil Judge has said that all that was stated in that medical certificate was that the appellant was advised to take rest for 15 days from 23-5-1967 and that that certificate did not establish that he was utterly disabled to attend to duty. The learned Civil Judge has also remarked that if the appellant could walk 3 or 4 furlongs from his house to reach the hospital, he could as well have walked 4 miles from his village to Udipi to file the application under Order 22, Rule 4, Civil P. C.
41. One other reason given by the learned Civil Judge for disbelieving the appellant's evidence as to his alleged illness and inability to attend the court, was that the plaint in his suit, S. C. No. 107 of 1967, had been presented in the court on 29-5-1967. From this, the learned Civil Judge drew an inference that the appellant was able to go to Udipi on 29-5-1967 and that his plea of illness was untrue.
42. But the appellant has explained in his evidence that though the said plaint and the vakalathnama bore the date 29-5-1967, he had actually signed them long prior to 29-5-1967, leaving the date blank and that his lawyer had inserted the date as 29-5-1967 while presenting them to the court. The evidence of the appellant on this point was corroborated by P. W. 3, Ramachandra Shetty, the clerk of the counsel for the plaintiff in that suit. There is no reason why the explanation given by the appellant which has been corroborated by P. W. 3, should be disbelieved.
43. As stated by the Supreme Court in Union of India v. Ramacharan : 3SCR467 though the court should not accept the bare allegation in an application as to the reason for not bringing the legal representatives on record within the prescribed time, but should examine and consider the evidence adduced in support of such plea, the court should not be over-strict in requiring as to why the application for substitution of legal representatives or for setting aside abatement, was not made in time. That the appellant was able to walk a distance of 3 to 4 furlongs from his house to reach the hospital, does not necessarily lead to an inference that ha could have also walked a distance of 4 miles to reach Udipi. When the doctor had advised him to take rest on account of his physical ailment, it is too much to expect him to walk a distance of 4 miles to Udipi to meet and instruct his lawyer to prepare the application for substitution of the legal representatives.
44. As stated by the Supreme Court in Ramlal v. Reva Coal Fields Ltd. : 2SCR762 , the failure of a litigant to account for his non-diligence during the whole of the period of limitation prescribed for an appeal or an application does not disqualify him from praying for the condonation of delay. The period of 90 days from the date of the death of respondent 1 in the appeal before the learned Civil Judge, expired during the Summer Vacation for the Civil Courts and the appellant was entitled to make the application for substitution of the legal representatives on the day of re-opening of Courts after the summer vacation. His omission to go to his Advocate and to give instructions for preparing such application, on any day before such re-opening day, is wholly immaterial.
45. What the learned Civil Judge had to consider was whether the appellant was prevented by sufficient cause from presenting such application on such reopening day. As the appellant has shown that on account of his illness he was prevented from so doing, the application for setting aside the abatement, made by him within the period of 60 days from the last date for filing the application for substitution of the legal representatives, should have been allowed by the learned Civil Judge.
46. In the result, this appeal is allowed, the order of the learned civil judge on R.I.A. No. 287 of 1967 and his judgment dismissing the appeal suit (R.A.) No. 102 of 1968, are set aside and the appellant's application for setting aside the abatement of the appeal and his application for bringing on record the legal representatives of deceased respondent 1 in that appeal, are allowed. As the learned Civil Judge has not gone into the merits of the appeal before him, the case is remanded to him with a direction to take back the appeal to his file and to dispose of it according to law.
47. In the circumstances of this case, parties are directed to bear their own costs in this appeal.