1. In this application under Order 22, Rule 9 read with Rule 11 of the Code of Civil Procedure, the petitioner-appellant, Corporation of Calcutta, has prayed for setting aside the abatement of the present appeal. Admittedly, the respondent Murari Churn Law died on Jan. 25, 1973 surviving him his widow Sm. Nayan Tara Law and three sons, namely, Gunanka Churna Law, Debinka Churn Law and Mrinanka Churn Law as his legal heirs. There is also no dispute that no application for substitution of the heirs in place of the respondent Murari Churn Law, deceased, was made within three months from the date of his death. Thus, under Order 22, Rule 4 read with Rule 11 of the Code, the appeal stood abated. Thereafter, no application was made by the appellant for setting aside the abatement within two months from the date when the abatement took place. The present petition was filed on May 23, 1974 for setting aside the said abatement.
2. Mr. Jayanta Mitra, Counsel for the petitioner, has submitted that the materials placed before this Court as disclosed in the petition, affidavit-in-opposition and affidavit-in-reply establish that there is 'sufficient cause' which has prevented his client for not making the application within the prescribed period of limitation. Relying upon Union of India v. Ram Charan, : 3SCR467 , he has submitted that the tests laid down in the said decision would clearly show that there has been no culpable negligence on the part of his client to make the present application and, as such, the delay in making this application has been caused on reasonable grounds and that such delay should be condoned under Section 5 of the Limitation Act.
3. Mr. Dipankar Ghosh, counsel for the heirs of the deceased respondent, relying upon the same Supreme Court decision, has submitted that no 'sufficient cause' has been shown by the petitioner which has prevented the latter from presenting this application within the prescribed period of limitation. He has laid emphasis on the fact that the appellants' mere absence of knowledge of the death of the respondent cannot be considered as 'sufficient cause' within the meaning of Order 22, Rule 9 of the Code or Section 5 of the Limitation Act, 1963. According to him, the said Murari Churn Law deceased, is a well-known respectable man in Calcutta and his death was reported in almost all the daily newspapers in Calcutta and the appellant should have immediately taken steps in presenting this application. Further, he has laid stress on the fact that this belated application does not disclose any ground which would persuade the Court to set aside the abatement. He has also added that the petitioner had also constructive knowledge of the death of Murari Churn Law inasmuch as he was cremated at the Corporation Burning Ghat where the death was recorded.
4. Counsel for both the parties have relied upon the principles of law laid down in Union of India v Ram Charan, : 3SCR467 (supra). It is well settled that period of limitation as set out in Articles 120 and 121 of the Limitation Act, 1963, starts from the date of death of the respondent and from date of abatement respectively. The point to be decided is whether in the facts and circumstances of this case the abatement should be set aside on the ground that the petitioner has been able to place before this Court 'sufficient cause' within the meaning of Order 22, Rule 9 and Section 5 of the Limitation Act It is true that the Supreme Court has made the following observations at page 219 :
'The mere allegation about his not coming to know of the death of the opposite party is not sufficient. He had to state reasons which, according to him. led to his not knowing of the death of the defendant within reasonable time and to establish those reasons to the satisfaction of the Court specially when the correctness of those reasons is challenged by the legal representatives of the deceased who have secured a Valuable right on the abatement of the suit.'
It is thus clear that the petitioner not only has to state the reasons for his absence of knowledge of the death of the defendant within a reasonable time but also those reasons should sufficiently establish to the satisfaction of the Court that the petitioner was prevented from making the present application. It is nobody's case that under no circumstances the Court has power to allow such petition if filed 150 days after the death of the deceased Party. The Court has to be satisfied from the reasons disclosed in the affidavits that the appellant was prevented from making the application for sufficient cause. The Court cannot have sympathy for a party who has been absolutely careless and negligent in not taking steps to find out the death of the respondent In the said decision the respondent died on July 21, 1957. The appellant came to know about his death on February 3, 1958 and the application for setting aside the abatement and condonation of the delay was made on March 18, 1958. Even the statements made in the petition have not been based on personal knowledge by the petitioner and no explanation for the delay was offered. The Supreme Court has found on those facts that no sufficient cause was shown which prevented the appellant there to make the application before March 18, 1958 although the appellant had knowledge of the death of the respondent on February 3, 1958. Further, in the said application there was no specific prayer also for setting aside the abatement Under those circumstances, the Supreme Court did not set aside the abatement of the appeal. In the said decision, however, Raghubar Dayal, J. has made the following observations at page 219:
'The provisions of the Code are with the view to advance the cause of justice. Of course, the Court in considering whether the appellant has established sufficient cause for his not continuing the suit in time or for not applying for the setting aside of the abatement within time, need not be over-strict in accepting such proof of the suggested cause as it would accept for holding certain facts established, both because the question does not relate to the merits of the dispute between the parties and because if the abatement is set aside the merits of the dispute can be determined while, if the abatement is not set aside, the appellant is deprived of his proving his claim on the ground of culpable negligence or lack of vigilance. This, however, does not mean that the Court should readily accept whatever the appellant alleges to explain away his default. It has to scrutinize it and would be fully justified in considering the merits of the evidence led to establish the cause for the appellant's de-fault in applying within time for the impleading of the legal representatives of the deceased or for setting aside the abatement.
** ** ** **** ** ** **The Court will set aside the abatement if it is proved that the applicant was prevented by any sufficient cause from continuing the suit. This means that the applicant had to allege and establish facts which, in the view of the Court be a sufficient reason for his not making the application for bringing on record the legal representatives of the deceased within time. If no such facts are alleged, none can be established and, in that case the Court cannot set aside the abatement of the suit unless the very circumstances of the case make it so obvious that the Court be in a position to hold that there was sufficient cause for the applicant's not continuing the suit by taking necessary steps within the period of limitation. Such would be a very rare case ...
But it can be said that the delay in making such applications should not be for reasons which indicate the plaintiff's negligence in not taking certain steps which he could have and should have taken. What would be such necessary steps would again depend on the circumstances of a particular case and each case will have to be decided by the Court on the facts and circumstances of the case.
*** *** ***Courts have to use their discretion in the matter soundly in the interest of justice. It will serve no useful purpose to refer to the cases relied on for the appellant in support of its contention that the appellant's ignorance of the death of the respondent is sufficient cause for allowing this application for the setting aside of the abatement and that in any case it would be sufficient cause if its ignorance had not been due to culpable negligence or mala fides...
It is true, as contended, that it is not the duty of the appellant to make regular enquiries from time to time about the health or existence of the opposite party. But it does not mean that mere fact of the appellant coming to know of the respondent's death belatedly, by itself, will justify his application for setting aside the abatement. That is not the law.'
5. The principles of law laid down in the said Supreme Court decision clearly indicate that the Court has a discretion in the matter if the Court is satisfied that there are materials before it which do not disclose culpable negligence or mala fides.
In the present case although we are not happy with the materials placed in the petition as drafted, we are satisfied that there is 'sufficient cause' which prevented the petitioner from presenting this application earlier. The reasons why we have come to the said conclusion are as follows:
Admittedly, the appeal was filed on November 19, 1962. On August 30, 1965 Late Mr. Justice D.N. Sinha and myself heard an application on behalf of the appellant for amendment of the plaint and the necessary 'order for amendment was made. The appeal thereafter was referred by us to a larger Bench in consideration of a substantial point of law. On May 17, 1974 the petitioner's Solicitor was informed that the appeal would come for hearing before the Full Bench consisting of the Chief Justice, M.M. Dutt J. and A.K. De J., on May 20, 1974. On May 20, 1974 the petitioner's Assistant Law Officer Sri A.K. Basu was informed in the Court for the first time by Shri Achala Nath Ganguly, the Solicitor for the respondent, that the respondent had died. This fact, however, was not admitted by the respondent But immediately on the same date the petitioner's solicitor wrote a letter to the said Shri Ganguly enquiring of him whether the said respondent had died leaving a will or intestate. The said Ganguly was also requested to furnish the names of the heirs of the deceased. By a letter dated May 21, 1974, received by the petitioner's Solicitor on May 22, 1974 the said Shri Ganguly informed the petitioner's Solicitor that the respondent died on January 25, 1973. On the next day the petitioner's Solicitor B.K. Das made the present application. Obviously, there is nothing to show that the petitioner had knowledge of the death of the respondent prior to May 20, 1974. The petitioner's Solicitor immediately thereafter asked the solicitor for the respondent to inform the date of the death of the . respondent and also the names of his heirs. The petitioner has rushed to the Court to make the application within 24 hours and perhaps this fact explains why the petition has not been properly drafted. In any event, the fact remains that the Solicitor for the respondent did not inform the Solicitor for the petitioner about the death of Murari Churn Law prior to May 21, 1974. In the affidavit-in-reply it has been made clear that in several suits pending before the High Court, City Civil Court, Alipore Court and also the Sealdah Court, the Corporation of Calcutta has filed several suits for recovery of the statutory dues of the owners and/or occupiers of house properties. Even assuming that the death of Murari Churn Law was published in the daily news-paper it is not possible for the law Officers of the petitioner to know that Murari Churn Law was a respondent in a pending appeal in this High Court nor can there be a constructive knowledge of the petitioner about the death of the respondent on the ground that the respondent was cremated in the Corporation Burning Ghat. It cannot be expected of a body like Corporation of Calcutta to keep itself informed about the defendants or respondents in the various proceedings pending in different Courts or that steps should be taken for substitution of the heirs of any of the parties in such proceedings on the basis of the newspaper report about the death. Of course the matter would be otherwise if there is any negligence on the part of the Corporation. It has not been established either that the petitioner or its Law Officers had any knowledge of the death of Murari Churn Law at any time before May 20, 1974, and that the former were negligent in making this application. Even assuming there is negligence on the part of the petitioner's solicitor in not keeping its client informed about the physical condition of the respondent, the respondent's solicitor has contributed to such negligence by not disclosing the death of his client. Further, it may be stated here that the present appeal was referred to a Special Bench as early as August 30, 1965. The present application was noted as made before C.J., M. M. Dutt and A. K. De, JJ on May 23, 1974. It further appears that a Full Bench had been constituted sometime in 1972 consisting of Arun Kumar Mukherjea, J. Sabyasachi Mukharji, J. and M.M. Dutt, J. As stated by the Supreme Court, it was not the appellant's duty to get itself informed about the health and existence of the respondent. Further, unlike the facts in the said Supreme Court case, all the necessary prayers have been asked for in the petition. The comment that has been made by Mr. Ghosh on behalf of the heirs of Murari Churn Law that the materials disclosed in the petition are not sufficient can be explained by an admitted fact that the present application was made within 24 hours of the date of the receipt of the letter that is May 22, 1974 received from Achala Nath Ganguly the Solicitor for the respondent. Further, it may be stated that the present Bench has been reconstituted for the third time by the learned Chief Justice as the second Special Bench constituted of myself, S.K. Mukherjee and A.K. Basu, JJ. could not 'hear the matter owing to personal ground of Mukherjea, J. Thus it cannot be said that the appellant was negligent in not keeping itself informed about the position of the appeal from the respondent's Solicitor.
6. We have failed to find out that the Corporation of Calcutta has acted mala fide in making the present application. Further, it cannot be said that the appellant is guilty of any culpable negligence in not presenting this petition earlier.
7. For all the reasons stated above in the extraordinary facts and circumstances of the case, we are satisfied that there is sufficient cause for the appellant for not taking steps earlier and that there should be an order in terms of prayers (1), (2), (3), (4), (5) and (6). The petitioner shall pay the costs of this application to the respondent.
8. Certified for two Counsel.
Ajay K. Basu, J.
9. I agree with the order.
10. I agree with the order.