K.S. Lodha, J.
1. This matter comes up for the consideration of the application of Shri Vinod Chandra, the alleged legal representative of the appellant Shri Madan Chand for setting aside abatement and impleading him in place of the deceased Madan Chand.
2. The suit for injunction restraining the Urban Improvement Trust (U.I.T.) from letting out the land in dispute and also restraining the other defendant Shri Puran Singh from doing anything which might diminish the plaintiff's right of way, air, light, drainage etc. and directing the U.I.T. to sell this land to the plaintiff, had been dismissed by the trial court and the plaintiff's appeal had also failed. The plaintiff has, therefore, come up in' second appeal. The sole plaintiff-appellant Shri Madan Chand admittedly died on 22-5 82. The present application has been filed on 1-3-83. The ground set forth for not bringing the legal representative on record within time, and for setting aside the abatement is that the applicant Shri Vinod Chandra Yati, who is the only chela and legal representative of the deceased did not know of the pendency of this appeal till 6-3-83 when he was informed by one Shanker Lal Goel that such a matter was pending before the High Court Thereupon he sent one Shri Prabhu Lal to contact Shri Dalpat Singh Shisodia, Advocate and to find out what was to be done in the matter. He was informed by a telegram by Shri Prabhu Lal to reach Jodhpur immediately. He received this telegram on 8-3-83. He left for Jodhpur on 9-3-83 reaching here on the 10th and after making necessary enquiries, filed an application on 11-3-83. Thus according to the petitioner, there was sufficient cause for settirg aside the abatement. This application has been supported by the affidavit of the petitioner as well as Shri Prabhu Lal. The letter said to have been sent by the petitioner along with Shri Prabhu Lal to his learned Counsel Shri Dalpat Singh Shisodia has also been filed along with these affidavits. The respondents contested the application. They denied the fact that the applicant was the legal representative of the deceased Madan Chand in respect of the suit property. According to them, he was a chela only in respect of the Upasara They also denied that the petitioner had no knowledge of the pendency of this appeal till 6-3-83. According to them, he was in constant contact with bis counsel and had the knowledge of this suit from the very beginning. In support of the reply, Puran Singh respondent has filed his affidavit.
3. I have heard the learned Counsel for the parties.
4. The fact that abatement has already taken place, is not in dispute. The question, therefore, is whether there are sufficient grounds for setting aside the same. The applicant Shri Vinod Chandra claiming to be the only legal representative of the deceased Madan Chand alleges to have no knowledge of this appeal till 6-3-83 when his neighbour Shri Shanker Lal had told him about it and had asked him to contact Shri Dalpat Singh, Advocate. Now, in my opinion, this contention of the applicant on the face of it appears to be unbelievable. In his affidavit, the applicant Shri Vinod Chandra has stated that Shri Shanker Lal bad informed him about the pendency of this appeal on 6.3.83 whereupon he sent Shri Prabhu Lal to Jodhpur in order to meet Shri Dalpat Singh and he had also sent a letter along with Shri Prabhu Lal addressed to Shri Dalpat Singh. Now this letter, which has been filed by the applicant himself along with his own affidavit and the affidavit of Shri Prabhu Lal belies this fact that he had come to know of the pendency of the appeal only on 6-3-83 because this letter is dated 5-3-83. The contents of this letter clearly show that at least On 5-3 83, the petitioner had knowledge of the pendency of the appeal and, therefore, this statement that he came to know of the pendency of the appal on 6-3-83 is apparently wrong. That being so, no reliance can be placed upon the affidavit filed by the applicant to the effect that he had no knowledge of the appeal before 6-3 83. The corollary is inevitable that he could have had knowledge of its pendency much before the alleged date. It cannot be said with certainty that he had no knowledge of the pendency of the appeal even before 5-3-83 merely because the letter has been written on 5-3-83. In this letter dated 5-3-83, the applicant has, of course, mentioned the date of the death of Shri Madan Chand but he has not stated that he was not in the know of the pendency of the appeal. Therefore, it cannot be accepted that the petitioner had no knowledge of the pendency of the appeal till 6-3-83 or for the matter of that till 5-3-83.
5. Even if for the sake of arguments it is assumed that he had come to know of the admission on 5-3-83 on which date, the letter was written, his conduct thereafter also does not appear to be such as would show that he was not at all negligent and was prompt in taking steps for the prosecution of the appeal. After having come to know of the appeal on 5-3-83, he did not immediately try to contract his counsel himself and merely asked a neighbour to just meet the counsel and enquire as to what was to be done in the matter. As a prudent man, he should have immediately contacted the counsel on coming to know of the pendency of the appeal. Not only this, he even did not send Shri Prabhu Lal immediately on 5th. Shri Prabhu Lal casually met him on 6th March, 1983 and then he mentioned to him about this matter. The matter does not rest here. Shri Prabhu Lal has filed an affidavit in suoport of the application for setting aside abatement, which gives a story which as a matter of fact demolishes the plaintiff's case further in as much as Shri Prabhu Lal has stated that when he met Shri Vinod Chandra on 6-3-83, Shri Vinod Chandra had told him that about two or three days back, Shri Shankar Lal Goel had told him (Vinod Chandra) about the pendency of this appeal before the HC. This, therefore, clearly shows that the affidavit of Shri Vinodchandra that he came to know of the pendency of the appeal from Shri Shankarlal only on 6-3-83 is a blatant lie. It further shows that he had knowledge of this appeal even before 5-3 83 on which the letter was writeen because if on 5th, according to Shri Prabhu Lal, Vinod Chandra had told him that Shankar Lal had informed him of the pendency of the appeal two or three days back, it would clearly mean that this was before 5-3-83 and, therefore, the fact that Shri Vinod Chandra had knowledge of the appeal much before the alleged date i.e., 6-3-83, is reinforced. In this State of affairs, there is no reason to disbelieve the affidavit of Shri Puran Singh, respondent that Shri Vinod Chandra had knowledge of the matter from the very beginning and had been in contact with his counsel. The tenure of the letter dated 5-3-83 also goes to show that Shri Vinod Chandra himself has been in touch with Shri Dalpat Singh, Advocate, from before otherwise while writing that letter on 5-3-83 he would certainly have introduced himself to Shri Dalpat Singh as the chela or legal representative of Shri Madan Chand.
6. For the reasons stated above, I am clearly of the opinion that the affidavit of the applicant Shri Vinod Chandra is not at all reliable and that being so, there is no escape from the conclusion that no sufficient cause for not making the application for his substitution in place of the deceased Shri Madan Chand in time has been made out. In this view of the matter, I need not go into the other question whether the applicant Shri Vinod Chandra is the legel representative of the deceased Madan Chand or not.
7. The result, therefore, is that this application fails. When the sole appellant has died and his legal representatives have not been brought on record in time, the appeal abates and is, therefore, dismissed as having abated. I shall make no order as to costs in the circumstances of the case.