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Lakshmi Chand Vs. L. Behari Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad
Decided On
Reported inAIR1932All459
AppellantLakshmi Chand
RespondentL. Behari Lal and ors.
Cases ReferredHari Satan Singh v. Sayed Md. Eradat Hussain A.I.R.
Excerpt:
- - we have considered the three affidavits and heard counsel on the question of fact, and we are satisfied that the appellant has in this respect made out his case that he was ignorant of the death of radhe lal until the day he names when he heard of it, and that the respondent has been unable to make out a case that that ignorance was due to the negligence or to the deliberate omission of the appellant......application had been made to bring his legal representatives on the record within the period of 90 days allowed by the limitation act. the application is made on the ground that the appellant was unaware, through no fault of his own, of the death of radhe lal. we have considered the three affidavits and heard counsel on the question of fact, and we are satisfied that the appellant has in this respect made out his case that he was ignorant of the death of radhe lal until the day he names when he heard of it, and that the respondent has been unable to make out a case that that ignorance was due to the negligence or to the deliberate omission of the appellant. it is next contended for the respondent that ignorance is no basis for extending the period of limitation, it being pointed out that.....
Judgment:

Smith, J.

1. This is an application by a defendant-appellant asking for the abatement of his appeal, as against one of the respondents, to be set aside, the abatement being due to the fact that Eadhe Lal, the respondent in question, having died, no application had been made to bring his legal representatives on the record within the period of 90 days allowed by the Limitation Act. The application is made on the ground that the appellant was unaware, through no fault of his own, of the death of Radhe Lal. We have considered the three affidavits and heard counsel on the question of fact, and we are satisfied that the appellant has in this respect made out his case that he was ignorant of the death of Radhe Lal until the day he names when he heard of it, and that the respondent has been unable to make out a case that that ignorance was due to the negligence or to the deliberate omission of the appellant. It is next contended for the respondent that ignorance is no basis for extending the period of limitation, it being pointed out that not only have the 90 days elapsed for making the application for substitution, but so have the 60 days allowed for the application to set aside the abatement (Article 17l). Section 5, Lim. Act, is expressly made applicable by Order 22, Rule 9 itself to applications of this nature. There is some authority in the decisions of the Punjab Court for the broad proposition that ignorance of the date of the death is not sufficient cause within Section 5, Lim. Act. There is no such authority in this Court, and we can find no justification for holding that ignorance of the death, in the absence of any negligence or other act or omission for which the applicant can be held responsible, should not be held to be sufficient cause within the meaning of the Limitation Act. In this we are in agreement with the view expressed in Hari Satan Singh v. Sayed Md. Eradat Hussain A.I.R. 1925 Pat. 162. The result is that we allow the application, and setting aside the abatement direct that the appeal be restored to its original number for disposal according to law, and that the names of Shyam Lal and Ram Lal, majors, and Moti Lal, minor, under the guardianship of Shyam Lal, be substituted for the deceased Radho Lal.


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