1. This is an application under Order 22, Rule 9 of the Code of Civil Procedure.
2. An appeal was presented by Lachhmi Narain and his son Sita Ram, plaintiffs, against Mangilal and Rameswar, defendants-respondents, in a suit for redemption of immovable property on 6th March, 1952. Notices of the appeal on the two respondents were served personally some time in April, 1952, and on 12th May, 1952, an order was recorded that the case was complete, and may be entered in the list of ripe cases. On 6th August, 1954, it was ordered that the case be put up for hearing on llth April, 1955.
On llth April an application was presented by the appellants under Order 22 Rule 9, Civil P. C., that they came to know from one Bhagirath on 6th April, 1955, that Mangilal respondent had died on Pos Budi 13, Samwat 2018 (2nd January, 1954); and had left as his heir and representative an adopted son Kalyan. It was prayed that the abatement of the appeal against Mangilal be set aside, and Kalyan be brought on record as legal representative in place of the deceased Mangilal. Notice was issued to Kalyan, and he has put in appearance, and opposed the application for setting aside abatement.
3. Learned counsel for Kalyan has contended that the fact of the ignorance of the death of the respondent is not a sufficient cause for the delay in making the application for setting aside abatement. It may be mentioned that Kalyan in his affidavit mentioned that Mangilal actually' died on Mah Budi 3, Samwat 2009 (3rd January, 1953). It was further stated in the affidavit by Kalyan that although the appellants generally lived outside their home village Reen-gug where Mangilal also resided, they had visited their home town Reengus on two or three occasions, and further that a Dharamshala had been built in the memory of Mangilal, after his death, and further the two Mukhtars of, the appellants Jagannath and Badri Narain lived at village Gudla only about three miles away from Reengus, and since they come to Reengus very often, they must have come to know of the death of Mangilal soon after his death.
It was in the circumstances prayed that the application to set aside abatement having been presented long after the period provided by law, and no good cause having been shown, the application of the appellants under Order 22, Rule 9, Civil P. C., for bringing on record Kalyan in place of the deceased Mangilal should be dismissed.
4. Learned counsel for the respondents relied on Jagadish Bahadur v. Mahadeo Prasad, AIR 1941 Oudh 16 (A); Chuni Lai Tulsiram v. Amin Chand, AIR 1933 Lah 356 (2) (B); Committee of Management of Bunga Sarkar v. Raghubir Singh AIR 1951 Simla 257 (C); Ramperkash Dass v. Kunj Lall, AIR 1924 Pat 126 (D) & Phulwati Kumari v. Maheshwari Prasad Singh, AIR 1924 Pat 607 (E), for the proposition that ignorance of the death of the respondent was not a sufficient reason for extending the provisions of Section 5 of the Limitation Act. In all these cases the principle which has been propounded is that:
'The Code makes it obligatory on an appellant to keep himself informed of any devolution of interest that may take place by reason of the death of any of the respondents, and it is not sufficient merely to say that the applicant had no knowledge of the death of the respondent till many months after such death. The abatement of an appeal gives a very important right to the person or his heirs against whom the appeal abates and it is not without sufficient reason that the Court should set aside an abatement.' The above observations have been taken from Phulwati Kumari v. Maheswari Prasad Singh (E), but broadly speaking the same chain of reasoning is to be found in other cases.
5. On the other hand, there are quite a large number of cases where it has been held that the fact that the appellant did not know of the death of the respondent was a good reason for extending limitation on an application under Order 22, Rule 9 of the Code These are--Jowala Ram v. Hari Kishen Singh, AIR 1924 Lah 429 (F) ; Raghu Nath Rai v. Radha Kishan Pannalal, AIR 1929 Lah 634 (G) ; Lakshini Chand v. L. Behari Lal, AIR 1932 All 459 (H) ; Mir Wajid Ali v. Fagoo Mandal, AIR 1938 Pat 125 (I) and Ratansi Agariya Bhate v. Jaysingh Dinkarrao Rajurkar, AIR 1954 Nag 348 (J).
6. It may be mentioned that the Punjab and Patna High Courts thus stand divided, and curiously enough in deciding Chuni Lal Tulsiram v. Amin Chand (B), the earlier cases which were decided to the contrary were not noticed, and in Patna the later view is that ignorance of the death is a good cause for extending limitation. On the view taken in the cases which have been decided on the lines of Phulwati Kumari v. Maheshwari Prasad Singh (E), it would seem that it would become the duty of the appellant as soon as he filed an appeal to arrange for watch of the respondent so that information could be sent to appellant every morning that his adversary was alive, but if he omits to do so and there occurs delay in the getting information about the death of the adversary, then he must lose his case. The Code does not anywhere make it the duty of the appellant to keep himself informed day by day about the health arid existence of his adversary.
What the law provides is that in case the adversary dies, then application should be presented to bring on record his legal representative where the cause of action survives against the legal representatives of the deceased respondent. The period of limitation is prescribed for such application, and in the absence thereof, the suit or the appeal abates as against such person. The Code further provides that this abatement can also be set aside, if an application is made within a particular period of limitation if it is proved that the applicant was prevented by sufficient cause from continuing his appeal.
The provisions of Section 5 of the Limitation Act are further directed to apply to an application of this nature. The law therefore, allows consi-derable latitude to the appellant to prosecute his appeal, and what better reason could there be for delay in the application than the fact that he had no knowledge of the death of the respondent. If he has the knowledge soon after the death, but presents the application after the period provided by law, he has still a chance of his prayer being allowed, if sufficient cause is shown for the delay.
It is not necessary to enumerate what facts would make out the cause to be sufficient, but as said above the fact that the appellant did not come to know of the death must obviously be the most sufficient cause.
7. In case, therefore, the version of the appellant that he came to know only on the 6th of April, 1955, of the death of Mangilal, is accepted, the delay up to that period would stand explained aS against this, the facts stated by the respondent to show that the appellant came to know of the death or could have come to know of the death earlier need examination. The affidavit of Kalyan admits the fact that the appellants generally reside outside their own town. It may be mentioned that the affidavit of Lachhminarain is that he and Sitaram carry on their business at Indore, and live there, and of the two only Lachhminarain visited Reengus some years ago as mentioned in the application.
At that time obviously respondent Mangilal was alive. The affidavit of Kalyan presented on 21st September, 1955 says that the appellant, referring thereby to the appellant Lachhminarain, visited his home town twice or thrice after the death of Mangilal. It is not stated whether these visits were before or after the application which had been presented on the llth of April, 1955, and, therefore, the fact alleged by Kalyan is not sufficient to show that Lachhminarain had paid a visit to his home town where the late Mangilal also resided, after the death of Mangilal, but before the application of llth April, 1955.
8. The next fact is that a Dharamshala was constructed in the memory of the deceased. It is not alleged that there is any tablet fixed on the house to be used as Dharamshala that it was built in the memory of Mangilal. It is also not said when it was constructed, and, therefore, the fact of the construction of the Dharamshala also is not sufficient to impute knowledge of death of Mangilal to the appellants.
9. Then it is said that Jagannath and Badri Narain, who were Mukhtars, lived three miles from Gudla, and they came to Reengus for marketing purposes, and must have come to know of the death of Mangilal. This again is a vague and indefinite sort of allegation. In the first place it is not a necessary consequence of living three miles distant that they should go to Reengus, and even if they go to Reengus, it is not necessary that they should come to know of the death of Mangilal. On the facts, therefore, it must be held that there is no reason to dispute the allegation of the appellant Lachhminarain that he came to know of the death of Mangilal on the 6th of April, 1955, as alleged by him.
10. It was next argued by learned counsel for the appellants that even if the benefit of Section 5 be extended to an application made by the appellants, every day of the delay prior to the date of actual application should be satisfactorily explained. This is no doubt true. It was urged by learned counsel for the respondents that when he came to know on the 6th of April, he need not have made a delay in making the application, till the llth of April. Learned counsel for the appellants has referred to the calendar and shows that 8th and 10th April were holidays.
The affidavit was sworn on the 9th which was Saturday. The time which elapsed between the date of knowledge and making of application is, therefore, not more than two days, and this obviously is explainable on the obvious fact that the appellant had to consult his lawyer, and to get a proper application made out supported by an affidavit before it could be presented to this Court. In the circumstances the delay upto llth April stands fully explained.
11. I, therefore, allow the application and direct that Kalyan be brought on record as legal representative of Mangilal deceased respondent. The respondent Kalyar will pay costs of this application.