P.S. Safeer, J.
(1) Evidence having been recorded in respect of the application (C.M. 1536 of 1971) the parties counsel have been heard at length. The application was preferred under Order 22, rules 3 and 4 read with rule 11 of the Civil Procedure Code, under the date 2nd of September, 1971. It was preferred in the course of Regular Second Appeal No. 178-D of 1966. A reference to the memorandum of appeal discloses that the address of the single respondent given therein was 'Raghunath Gupta s/o Mahi Ram, resident of 26, Beadanpura, Karol Bagh, Delhi ' The appeal was admitted in the year 1966. Raghunath Sahai respondent died four years thereafter.
(2) No counsel is expected to be every time aware of the death of any of the parties to the litigation in his charge A counsel may be unaware of the death of his own client. It is the choice of legal representatives of a client to inform his counsel about the demise. It is rightly stated in the application by Mr. Bishamber Dayal that he learnt about the death of the respondent from the respondent's counsel in July, 1971. There is nothing to controvert that assertion. The statement of Shri Ram Nath Chitkara, Occupation Tahsildar, Delhi Development Authority, recorded on the 5th May, 1972, supports para I of the application inasmuch as he deposed that a letter, dated the 12th July, 1971, had been received from Mr. Bishamber Dayal, stating that Raghunath Sahai respondent according to his information had expired. The counsel had requested for the information regarding the legal representatives of the deceased respondent.
IN Para 2 of the application it is stated that after the information regarding the demise of the respondent was received, officers of the appellant tried to verify the information and to find out the names and address of the legal representatives cf the deceased. In para 3 of the application three legal representatives of the deceased are mentioned. At item (a) is the name of Smt. Shanti Devi, widow of the deceased ; at item (b) is the name of Shri Narinjan his son and item (c) Miss Raghunath Sahai is mentioned as a daughter. May be there was difficulty in finding out the exact name of the daughter.
NO circumstances were narrated in para 4 of the application detailing as to why the death of the respondent was unknown to the appellant and as to what efforts had exactly been made to find out the names of the legal representatives. No circumstances were detailed urging that in terms thereof the appellant had sufficient cause for not making the application within the period of limitation.
IN Para 5 of the application it has been stated that the right to sue survived against the legal representatives and the prayer was that they be brought on the record and the appeal be proceeded with.
(3) The application was contested. The Preliminary objection raised on behalf of Shri Narinjan son of the deceased Raghunath Sahai was that the application was barred by time, and that, the appeal was liable to be dismissed as it had abated. It was stated that, respondent Raghunath Sahai had died on the 19th of Jur.e, 1970.
(4) As is stated earlier, the parties were allowed to lead evidence. The appellant examined the Tahsildar Shri Ram Nath Chitkara. Shri Narinjan son of the deceased respondent appeared as his own witness.
(5) Mr. Bishamber Dayal faced with the abatement of the appeal urged that he had filed the application in the circumstances stated therein and the information regarding the demise of the respondent had been given to him by the counsel for the respondent. The learned counsel urged that although the application had been preferred under order 22, rules 3 and 4, read with rule 11 of the Civil Procedure Code it deserved to be treated as an application under order 22, rule 9 of the said Code. Where a court finds that an application has been preferred under order 22, rules 3/4 of the Code but the appeal has in fact abated before the filing of the application and where the application contains a prayer that, after impleading the legal representatives the appeal be proceeded with, the court can treat the application as one for setting aside the abatement. I find support for this view from the observations, made in Prem Nath deceased represented by Smt India Vati and others v. M/S Kaudoomal Rikhiram and others . Labelling of the application under order 22, rule 4 will not detain the court from doing justice, if the prayer contained in the application attracts the applicability of rule 9, of the order 22, of the Code. Accepting the submission of Mr. Bishamber Dayal that the application be treated as one for setting aside abatement, the court has to be conscious' of Articles 120 and 121 in the Limitation Act 1963, which provide separate period for moving applications for impleading the legal representatives of deceased plaintiff/appellant or a deceased defendant/respondent and for setting aside the abatement. Article 120 prescribes a period of 90 days which starts from the date of death for making the application for impleading the legal representatives Article 121 provides that the application for setting aside the abetment be preferred within sixty days thereof. That period would start from the date on which the period prescribed for impleading the legal representatives would end. Where legal representatives have not been imp leaded by moving an application utilising the period prescribed under Article 120 of the Limitation Act it is for that purpose he has the additional period of 60 days. As I have said earlier, even if the application with which I am dealing is treated as being one for setting aside the abatement, it has to be dealt with in terms of the requirement that the applicant must establish to the satisfaction of the court sufficient cause for setting aside the abatement. Where an application is perferred within the period prescribed by Article 120 for impleading the legal representatives, there will be no necessity for the applicant to narrate any circumstances because in that case there would be no delay in preferring the application. Where, however, because of failure to file an application within time for impleading legal representatives abatement has taken place, it becomes incumbent on the applicant to detail the circumstances, which prevented him from filing the Application for impleading the legal representatives within the time prescribed by law, In an application for setting aside the abatement the applicant has to disclose the reason for every day's delay. That is necessary in order to give a clear opportunity to the opposite party to controvert the reasons stated for setting aside the abatement. Mr. Bishamber Dayal urges that even where an application is not preferred under section 5 of the Limitation Act the court will still be within its rights to exercise the powers given by that provision if the same is applicable. Section 5 of the Limitation Act excludes from its purview only the applications, which may be made under order 21 of the Civil Procedure Code. The provision is, thereforee, applicable to the instant application. Wherever the court is to use its discretion under that provision it has to find out whether there is sufficient cause for allowing there under. No court will be capable of finding for itself; the grounds for giving relief unless sufficient reasons are disclosed in the application establishing sufficient cause for admitting an application or an appeal after the expiry of the period of limitation prescribed for filing it.
(6) The precise judgment which deals with the controversy before me is Union of India v. Ram Charan (deceased)through his legal reprenentatives, : 3SCR467 . Important observations contained in paragraphs 8, 9 and 10 are to the effect that the proper course which the court would adopt would be to find out for itself whether in a given case, sufficient cause has been established for setting aside the abatement. It is emphasised that in the application itself that grounds constituting 'sufficient cause' must be stated. [After quoting from Supreme Court decision, judgment proceeds
THE provisions contained in Rules 3, 4 and 9 in order 22 of the said Code are expressly made applicable to appeals by rule 11 thereof. The observations made by the Supreme Court apply equally to the abatement of an appeal.
(7) Turning to the statement made by Shri Ram Nath Chitkara, Occupation Tehsildar, Delhi Development Authority, who was examined as a witness by the applicant I find that inspire of a very important communication, received from Shri Bishamber Dayal, Advocate, the Patwaris and Kanungos functioning under the said Tehsildar acted with dire neglect. As stated in an earlier part of this judgment, the address of the deceased was '26, Beadonpura, Karol Bagh, Delhi'. On receiving the communication from Shri Bishamber Dayal the Tehsildar had only to obtain information from 26, Beadonpura regarding the precise date of the death of Raghunath Sahai and the names of his legal representatives. His statement, however, is :- [......]
(8) Shri Niranjan Dass son of Shri Raghunath Sahai appeared as his own witness. He stated that his father had been living at 26, Beadonpura, with him, for the last 30-35 years before his death. He also stated that his father had died on the 19th of June, 1970. It passes comprehension as to how the patwari on 24th July, 1971 reported that it was not being found out as to who the legal representatives of the deceased were. Why was it again that on a fresh enquiry made on 27th July, 1971. the report was similar that no information was obtainable. Then again, the statement of the Tehsildar is to the effect that on 31st July, 1971, the Patwari reported that nothing was being known and the Quanungo also subscribed to the Patwari's report. Mr. Chitkara's statement then is that on 3rd August, 1971, the enquiry was entrusted to another Patwari, who again reported on . he same day that, nothing was being Known. 26, Beadonpura Karol Bagh, very much existed where it existed at the time of the filing of the appeal and enquiries could be made from that house as well as from the houses in the vicinity The Delhi Development Authority, being the appellant, even after the counsel had written the letter on the 12th of July, 1971, acted with dire neglect in discovering, as to whether the respondent had died and if so, when and who were his rival representatives. The Patwaris and other officials, through whom the enquiries were made failed in the discharge of their duties. The circumstances on the record do not establish any sufficient cause for interference within the scope of section 5 of the Limitation Act and this is not a case, where the abetment can be set aside. The learned counsel for the appellant promptly informed by his letter dated the 12th of July. 1971, that the respondent was stated to have died. The address of the respondent was very much known to the appellant, who had filed the appeal. The appellant could have, within the shortest possible time, discovered from 26 Beadonpura, the necessary information which could have been made available to the learned counsel. The whole of the month of August, 1971, was wasted. It was on the last day of that month that information was send to the local section of the Delhi Development Authority and on the 1st of September, 1971 the said section forwarded the report to Mr. Bisban ber Dayal who then filed the application. In this case, the appellant applicant has failed to establish sufficient cause for setting aside the abatement. The sole respondent having died and the appeal having abated, the same is dismissed Along with the application. There will be no order as to costs.