Shamsher Bahadur, J.
1. The plaintiff, Kedar Nath, who is an advocate, brought a suit for recovery of a sum of Rs. 1,700/-against Ganesh Dass and Sanwal Dass proprietors of the firm Sanwal Dass Ganesh Dass of Katra Shahnashin, Chandni Chowk, Delhi. The amount claimed was in respect of professional fees which remained unpaid by the defendants who had engaged the plaintiff as their counsel.
2. The principal plea of the defendants which found favour with the trial Judge was that the fees claimed by the plaintiff had already been paid to him and nothing more was due to him. It may not be out of place to observe that the plaintiff claimed money from the defendants in connection with a suit for dissolution of partnership and accounts brought against the defendants in the year 1941. This litigation went through many vicissitudes and ultimately there were also proceedings in the High Court at Lahore and admittedly the plaintiff was engaged to represent the defendants there.
The present suit was instituted in 1949-50 and it was dismissed on merits by the Court of Mr. Parshotam Sarup, Subordinate Judge 1st Class, Delhi, on 15th of January 1951. An appeal was preferred before the learned District Judge who dismissed the same on 16th of May 1953. The appeal was dismissed because in the opinion of the learned District Judge it was instituted beyond the statutory period of limitation. It was also held by him that Ganesh Dass having died during the pendency of the suit and no application to bring his legal representatives on record having been made within the period of 90 days, the appeal had abated.
The lower appellate Court further held that the suit having abated qua the legal representatives of Ganesh Dass there was a possibility of contradictory decrees if the appeal was allowed to proceed against the legal representatives of Sanwal Dass, who also died during the pendency of the suit. In this view of the matter, the abatement was held to be total and the appeal was dismissed with costs. Mehar Singh, J. though he held that the appeal was instituted in time found himself in agreement with the lower appellate Court on both the questions relating to abatement and the decree of the lower appellate Court was accordingly affirmed.
3. In the Letters Patent Appeal before us from the judgment of Mehar Singh, J., we have heard the learned counsel for the appellant at length and he has left nothing which could conceivably have been urged in favour of the plaintiff-appellant. Ganesh Dass died on 15th of April, 1952, and an application to bring his legal representatives on record was made on 31st of July, 1952. The cause for the delay in making this application was ascribed to the plaintiff's ignorance about the death of Ganesh Dass.
Mehar Singh J., taking into consideration the admitted fact that Ganesh Das was living only at a short distance from the house of the plaintiff, came to the conclusion that the plaintiff had not shown vigilance to entitle him to ask for the Court's indulgence. Ignorance per se is not sufficient to extend the period of limitation; it has to be linked with care and diligence on the part of the applicant and has to be disassociated from laches and negligence in pursuing the appeal. This is the ratio decidendi of the Full Bench decision of this Court in Firm Dittu Ram Eyedan v. Om Press Co., Ltd., AIR 1960 Punj. 335.
While the applicant is not expected to keep himself informed about the daily health of his contestant in litigation, he should be vigilant and not let any opportunity go by to acquaint himself about such a matter as the death of his rival in suit. The question resolves itself into one of fact and the considerations which influenced the mind of Mehar Singh, J. are not opposed to the principles enuniciated in the Full Bench decision. The learned counsel for the appellant has urged that the house of the appellant is not in the same street as that of Ganesh Dass respondent.
It is however, not denied that a short distance separates the two houses. It has been urged by the learned counsel that the appellant was busy in the marriage of his daughter and it is for this reason that he could not gain knowledge about the death of Ganesh Dass. The learned Judge considered this circumstance and we have no reason to take a view different from the one at which he arrived. No sufficient cause was made out for the delay in making the application to set aside the abatement and it has been rightly held that the suit has abated qua the legal representatives of Ganesh Dass.
We are not inclined to attach any importance to an order passed by an administrative official of the Court in which the Presence of the defendants' counsel was noted after the death of Ganesh Dass had actually taken place. It was never asserted that the appellant was misled in any way by this routine order written by the Superintendent. We see no reason to disturb the finding of the learned Single Judge that the appeal had in fact abated.
4. Mr. Misra next contended that the abatement was only partial and could not operate against the legal representatives of Sanwal Dass who have been brought on record within the prescribed Period. A large number of authorities were cited at the Bar but the principles on which a decision has to be based are well settled. The true test of judging whether there has been a partial or total abatement is to see whether the suit could proceed in the absence of the deceased respondent. In other words, it has to be examined whether the suit was one in which the liability of the respondents was joint and indivisible or joint and several.
Not much guidance is to be obtained on this point from the pleadings of the parties. It has been frankly conceded by the learned counsel for the appellant that no averment was made in the plaint that the liability of Ganesh Dass and Sanwal Dass was joint and several. It has in fact been asserted that it was not necessary for the appellant to do so and the principle of Section 42 of the Indian Contract Act that 'when there are two or more persons who have made a joint promise, then, unless a contrary intention appears by the contract, all such persons, during their joint lives, and after the death of any of them ....... must fulfil the promise'has been relied upon.
Section 43 of the Contract Act enables a promisee to enforce the joint promise against any of the joint promisors. The counsel submits that it was not necessary for the plaintiff to plead that the liability of Ganesh Das and Sanwal Dass was joint and several. The argument which has been advanced on behalf of the appellant was not found acceptable in a Division Bench judgment o the Calcutta High Court in Jogesh Chandra v. Bama Sundari Debi, AIR 1917 Cal 647.
It was held that 'when a suit against a number of joint promisors or joint contractors has been dismissed, the plaintiff cannot prosecute an appeal against some only of them, renouncing his claim against the rest or their legal representatives'. In the view of the Division Bench 'such an appeal cannot be sustained either on the footing of the promisee's right to release any of the Promisors under Section 44 or of a joint and several liability under Section 43, because, if the appeal is allowed, the respondents on record cannot by reason of the decree of the trial court, which is conclusive in favour of the respondents not impleaded, sue the latter for contribution'.
5. If the suit is permitted to be continued against the legal representatives of Sanwal Dass and a decree is made against them it would lead to an unfair situation for them inasmuch as they would be deprived of the right of contribution against the legal representatives of Ganesh Dass. Precisely the same considerations prevailed with the Division Bench in the Calcutta Case, (AIR 1917 Cal 647). In another Division Bench judgment of the Patna High Court (Mohammad Noor and Varma, JJ.) in Apurba Krishna v. Ram Bahadur, AIR 1936 Pat 191, it was held that 'the test to be applied is whether in the event of appeal being allowed as against the remaining respondents there would or would not be contradictory decrees in the same litigation with respect to the same subject-matter'. There is no doubt that the answer would be in the affirmative if the suit is permitted to be continued against the legal representatives of Sanwal Dass. In a Full Bench judgment of the Lahore High Court in Sant Singh v. Gulab Singh, AIR 1928 Lah 572, Sir Shadi Lal, in giving the opinion of the Bench of five Judges, observed as under at page 574:-
'It is a matter of common sense that the Court should not be called upon to make two inconsistent decrees about the same property, and in order, to avoid conflicting decrees the Court has no alternative but to dismiss the appeal as a whole'.
6. This judgment was relied upon by the learned counsel for the appellant in support of the proposition that the death of one of the respondents does not necessarily result in the abatement of the appeal in its entirety. To this statement of law the qualification enunciated by Sir Shadi Lal, has to be attached. We would be adding the perils of uncertainty and confusion to the hazards of litigation if we were to permit the legal representatives of Sanwal Dass to be brought on record for the benefit of the appellant.
The Full Bench decision in Faqira v. Hardewa, AIR 1928 All 172, relied upon by the learned counsel for the appellant, does not support him. It is true, as observed by Sulaiman, J., that 'a mere danger of multiplicity of suits is not sufficient for the dismissal of the whole appeal when it is not impossible to pass a decree in favour of the plaintiffs against one set of the defendants'. In the case before us, however, it is not the risk of multiplicity but the passage of a contradictory decree which is the overriding consideration.
7.It has been pressed by the appellant's counsel that it is possible for the Courts to pass a decree for half the amount against the legal representatives of Sanwal Dass. I am afraid, it is not Possible at this stage to rewrite the pleadings of the parties and enter into a field of pure conjecture and speculation. We have to look at the plaint as we find it and it is impossible to say that in the suit, as it was presented to the Court, a decree against Sanwal Dass alone or his legal representatives could be passed ignoring altogether Ganesh Dass or his legal representatives.
From whatever point we may look at, it does not seem possible to come to a conclusion that the suit could have been successfully maintained only against Sanwal Dass. This is one of the tests to examine the question, of the nature of abatement whether it is partial or total. If separate suits can be maintained against the promisors, then only the abatement will be partial. The ruling of the Division Bench of Sir Shadi Lal and Martineau, JJ., in Jai Kishen Dass v. Arya Priti Nidhi Sabha, AIR 1921 Lah 357 (2), cited by the appellant's counsel does not seem to support him.
In this authority, all that is stated is that where the deceased person was not a necessary party, the appeal can proceed without impleading his representatives. It has never been the case of the appellant that Ganesh Dass was an unnecessary party or he could easily have been removed from the array of defendants. The facts in Firm Gurudas Ramkoturam v. Bhagwan Das, AIR 1922 Lah 182, relied upon by the appellant's counsel, were quite different from those in the present case; in that case the suit was brought against four persons jointly and severally and was based on a current account. The suit was dismissed but it was held that 'the appeal does not fail against the defendant impleaded because a contract entered upon by one or more promisors can be enforced against all or any of them
8. The Bench decision (Addison and Din Mohammad, JJ.) of the Lahore High Court in Hayat v. Mutalli, AIR 1938 Lah 35, referred to by the counsel for the appellant, states the general proposition of law which is unexceptionable. It was held that if the abatement is to be in toto and not partial the interests of the different respondents should be neither separate nor separable. Din Mohammad, J., who delivered the judgment, made a reference to the confusion which would result in two conflicting decrees if an appeal is allowed In the absence of some of the defendants in whose favour the original decree stands. Thefacts of the present case do not justify the inference that the interests of the two original respondents were either separate or separable. The suit was brought against both of them jointly on the basis of one integral contract and, in our opinion, the ruling of the decision in AIR 1938 Lah 35 does not lend support to the contentions of the counsel for the appellant.
9. In the Division Bench authority of Palnitkar and Deshpande, JJ., in Dara Shahapurji v. Askarai Begum, AIR 1954 Hyd 98, we find nothing beyond the mere statement of the principle that where the interests of the respondents could be separated, there is only a partial abatement and the appeal against the respondents whose interests can thus be separated can proceed.
10. The weight of authority, in our opinion, is clearly in favour of the view which has been taken by the learned Single Judge. This appeal accordingly fails and is dismissed. In the circumstances of the case however, there would be no order as to costs.
G. D. Khosla, J.
11. I agree.