1. This is an appeal filed under Order 43, Rule 1, Clause (k) of the Code of Civil Procedure against an order of the learned District Judge of North Arcot refusing to set aside the abatement of A.S. No. 214 of 1936. The appellant is the legal representative of the appellant who was on record in A.S. No. 214 of 1936. He applied to be impleaded and to be allowed to continue the appeal at a time when more than 90 days had elapsed since the death of his predecessor-in-interest. The reasons for his application were that he was a sepoy undergoing service at Jubbulpore, that he attempted to obtain leave from his Commanding Officer for the purpose of coming to Vellore and attending to this question of coming on record in the appeal, that the Commanding Officer refused to grant him leave and that when he eventually granted him leave on receipt of a letter from the Village Munsif, 90 days had expired. The learned District Judge refused to allow the petition on the ground that it was not necessary for the appellant to have obtained the attestation of his Commanding Officer in Jubbulpore to his affidavit and that he could easily have attended to this matter in the ordinary course of the post. There is no other material available, no affidavit from the Commanding Officer himself which in the circumstances of the case could hardly be expected, nor any affidavit from the Advocate who represented the appellant or the appellant's predecessor-in-interest.
2. The learned Advocate for the respondents takes the preliminary objection before me that no appeal lies under Order 43, Rule 1(k) and in support of that position cites the case reported in Akkas Mia v. Abdul Aziz Bepari : AIR1929Cal532 . That authority certainly supports his view, but on the other hand there are cases in which the Patna High Court has interpreted the clause in Order 43 in a different way. It seems to me quite clear on an examination of both Order 22 and Order 43 that I should follow the view of the Patna High Court. Order 22, Rule 9 in terms relates only to a suit. It begins:
Where a suit abates,...no fresh suit shall be brought on the same cause of action.
3. But Rule 11 of Order 22 runs as follows:
In the application of this order to appeals, so far as may be, the word 'plaintiff' shall be held to include an appellant,...and the word 'suit' an appeal.
And there is no dispute before me that an order that an appeal has abated can be set aside under Order 22, Rule 9 as interpreted by Rule 11. Order 43, Rule 1(k) reads as follows:
An appeal shall lie from an order under Rule 9 of Order 22 refusing to set aside the abatement or dismissal of a suit.
4. It is argued in support of the preliminary objection that the use of the word 'suit' in Clause (k) must necessarily exclude the word 'appeal'. I am unable to accept that argument. It seems to me that the expression 'refusing to set aside the abatement or dismissal of a suit' is merely a compendious way of referring to the provisions of Rule 9. As already stated, Rule 11 of Order 22 makes Rule 9 applicable to appeals. It would be contrary to all rules of logical interpretation, it seems to me, if the word 'suit' in Clause (k) of Order 43, Rule 1 is to bear a different meaning to what it bears in Order 22, Rule 9. I accordingly overrule the preliminary objection and hold that this appeal does lie.
5. On the merits of the appeal I think the order of the learned District Judge was not one in which he has rightly exercised his discretion. It may well be that if the appellant had been more familiar with legal procedure or if it were shown that he had been in correspondence with his Advocate during this period, he might have taken other steps to bring himself on record in time. But what he states in his affidavit seems to me to show that he has conducted himself with reasonable diligence in this matter. He has done what one might normally have expected a soldier serving in a foreign province to do. He states that he has prepared an affidavit and that his Commanding Officer would not sign it. This matter of course has not actually been proved, but it seems to me that it would never have been stated if it were not true, and once the Commanding Officer had refused to sign the affidavit, one could hardly have expected the appellant to have sought out any other public official in a distant place like Jubbulpore. Although, the appellant does not state explicitly that in his mind the only practicable way of bringing himself on record was to come to Vellore and there prepare the necessary affidavit and take the necessary steps, I think it is a reasonable inference from a perusal of the affidavit as a whole that that was the impression which existed in his mind, an impression which in my opinion is not in all the circumstances of this case an unreasonable one. I would therefore set aside the order of the learned District Judge and the abatement of the appeal and allow the appellant to be brought on record as the legal representative of the appellant in that appeal and order that the appeal be duly heard and disposed of according to law. In the circumstances of this case I think the fairest order in regard to costs is that each party should bear his own costs throughout.