Venkatasubba Rao, J.
1. The point, I have to decide, is, is the abatement of the suit as against the 2nd defendant to be set aside or not? The suit is brought on behalf of the minor plaintiff by his mother acting as his next friend. The 2nd defendant who was the paternal grandmother of the minor and the mother-in-law of the next friend died on the 25th of April, 1927, and no application was made within the 90 days allowed by the law to bring her legal representative on the record and, under Order 22, R. 4, Civil Procedure Code, the suit abated as against the 2nd defendant. The plaintiff had then a period of 60 days for applying under Order 22, Rule 9, for setting aside the abatement. The application was not made within the time allowed, but, was made on the 7th of October, 1927, that is, a few days after the expiry of the aggregate period of 150 days.
2. In this case, under both the provisions of the law that apply, sufficient cause should be shown; first, the applicant must show 'sufficient cause' under Order 22, Rule 9, for not having brought in time the legal representative on the record; secondly, the applicant must show 'sufficient cause' under Section 5 of the Limitation Act for not having made in time the application to set aside the abatement.
3. The next friend has filed an affidavit admitting that she was aware of the death of the 2nd defendant; indeed, having regard to the relationship between the parties, it would have been futile to deny it. The excuse put forward is, that the next friend did not attach any significance to this event, that is to say, she was entirely ignorant of the fact that, on the death of a party, certain steps should he taken in the suit. She proceeds to explain that the suit was conducted on her behalf by her aged father and that when the latter went to her counsel for giving instructions, it then came to his knowledge that a necessary step had not been taken. The point I have to decide is, has a sufficient cause been made out? In such a case as this, it is impossible to treat the question of 'sufficient cause' as consisting of two different parts, as if, what is sufficient for one purpose is unconnected with what is sufficient for the other. It is a continuing cause, which cannot admit of a break, and, therefore, the question ultimately resolves itself into : is ignorance of law, in the circumstances, excusable? The cases on the point are by no means uniform and, to illustrate the wide diversity of judicial opinion, I may cite a few English decisions on an allied topic. Dealing with enlargement of time in regard to filing of appeals, Bowen, L. J., in In re Manchester Economic Building Society (1883) LR 24 Ch. Div 488 observed:
If he (the appellant) is asking for what may lead to injustice, he ought not to have it except on the terms which would prevent any injustice possibly being done. * * * * But, if the person who is asking for leave to appeal after 21 days is only asking for what is just, why should he not have it?
James, L. J., in International Financial Society v. The City of Moscow Gas Co. (1877) LR 7 Ch. Div. 241, takes the very opposite view and is in favour of a rigid application of the rule as to time, and he observes that the Courts ought to enlarge time only in exceptional cases which are thus described:
For instance, where there was anything like misleading on the part of the other side, or where some mistake had been made in the office itself and a party was misled by an officer of the Court, or again, where some sudden accident which could not have been foreseen--some sudden death, or something of that kind, which accounted for the delay; in such cases, leave might be given.
A recent case, Coles v. Ravenshear LR (1907) 1 KB 1, again illustrates how on this point widely different views could be taken. Collins, M. R., thinks:
that the relation of rules of practice to the work of justice is intended to be that of hand-maid rather than mistress
and says that, if the point were free from authority, he should unhesitatingly allow the time to be extended. Cozens-Hardy, L. J., expresses himself more or less to the same effect; whereas, Farwell, L. J., takes the view that a mistake 'even on the part of eminent Counsel' is not a sufficient ground for granting the application. In that case, all the Judges felt, however, bound by the authority of In re Helsby LR (1894) 1 QB 742 and declined to grant the extension. It must be noticed, however, that the cases to which I have referred were dealing with applications after judgment, for, a distinction is made between such applications and applications before judgment, on the ground that, in the case of an appeal, a party has a vested right in a subsisting order in his favour, the principle being, that the case has been fully heard on the merits in the Court below and the presumption, until the contrary is shown, is that the decision of that Court is correct. This difference is clearly brought out in Collins v. The Vestry of Paddingtan (1880) LR 5 QBD 368. The test laid down by Bramwell, L. J., in that case is this:
Has the mistake or carelessness of the applicant or his advisers been real and unintentional, and can any damage which may be occasioned to the respondent by granting the indulgence be repaired by costs or otherwise? If so, grant it; if not, reufse it.
This is the test which the learned Lord Justice lays down, irrespective of the fact whether the application is before or after judgment. Adverting to this test, Baggallay, L. J., and Thesiger, L. J., in the same case observe that the test is a good one if applied to proceedings in the action, but not to applications after the action has been tried.
4. We are not bound by the English decisions on a point like this and I would respectfully adopt, in the case of all applications, the test laid down by Bramwell, L. J. If the mistake or carelessness was real and unintentional and no damage has been done to the other side that cannot be repaired by costs or otherwise, the application must be granted; if on the other hand, the negligence was culpable, or there was malafides on the part of the applicant, or irreparable hurt would result to the other side, the application must be dismissed. The case with which I am dealing does not, however, present much difficulty, as the application made to me is one before judgment and not after judgment. There are several cases decided by Courts in India which support the view I am taking. Krishna Mohan Ghosh v. Surapathi Banerji (1924) 29 CWN 472 is a case decided by a bench of the Calcutta High Court, and the facts there are very similar to the facts of the present case. The delay in that case was excused and it was held that there was sufficient cause. Sudhakar v. Sadasiv (1915) 19 CWN 1113 relates to the filing of an appeal and is also a decision of the Calcutta High Court. The facts were : The father of the applicants had died, they were themselves minors; their guardian was a female and they resided in an out of the way village. It was held that there was sufficient cause and the delay was excused. In Krishna v. Chathappa (1889) ILR 13 M 269, there was a delay in the filing of an appeal and it was excused, the Court holding that the words 'sufficient cause' should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fides is imputable to the appellant. In the same case, the learned Judges stated that they were not prepared to hold that a mistake of law is under no circumstances a sufficient cause. I may also refer to Shibdayal v. Jagannath ILR (1922) A 636, where, a Full Bench of the Allahabad High Court took a similar view, after expressly holding that the rigid rule applied in English Courts ought not to be applied in India.
5. In this case, there is an additional reason for holding that the delay ought to be excused. The plaintiff is a minor and he cannot be finally deprived of his right by the negligence of his next friend and it is open to him to say that he is not bound by the result of this action and file a fresh suit. The question, then, is, is he to be allowed to continue the suit, or be driven to another action? This, to my mind, must be an additional reason for granting the application. I have come to the conclusion that the delay must be excused and I set aside the abatement and direct that Batchammal and Kannammal be brought on the record as the legal representatives of the 2nd defendant.
6. The 1st defendant's costs of the application shall be costs in the cause and I certify for Counsel for him.