1. This is an appeal from an order of Banerjee J, dated November 23, 1948, setting aside an abatement.
2. The two plaintiffs brought a suit against Sm. Fuleswari Bhadra claiming a declaration that they had certain rights of light and air and an injunction restraining the defendant, her servants or agents from obstructing or interfering with these rights. There was also a claim for a declaration as to a right of way and an injunction restraining the defendant from interfering with such right.
3. The suit proceeded, but eventually it became known to the plaintiffs that Sm. Fuleswari Bhadra had died and the solicitors of the plaintiffs wrote to the defendant's solicitors asking them for information as to who were the personal representatives. No satisfactory reply was obtained, and eventually certain records were searched in this Court and it was discovered on August 23, 1948, that the lady had left a will naming Ashutosh Bhadra and Bejoy Kumar Bhadra as executors. They were therefore the proper persons to be substituted in place of the deceased defendant. It appears that the defendant actually died on April 9, 1948.
4. It is therefore quite clear that on August 23, 1948 the plaintiffs through their solicitors obtained the information that the proper persons to be substituted were the two executors However, no immediate steps were taken by the plaintiffs and an application for substitution was not made until September 21, 1948.
5. The ninety days from the date of death had long since elapsed and the sixty days given to a party to apply to set aside the abatement expired on September 5, 1948. It is clear therefore that if the plaintiffs' attorneys had taken immediate steps an application for setting aside the abatement could have been made within the sixty days However, as I have said, it was not made within the sixty days and was not actually filed until. September 21, 1948, that is, fifteen days after the period of sixty days had expired.
6. The plaintiffs explain the delay by saying that the conduct of the suit was in the hands of the male plaintiff Jatindra Mohan Seal and that he suffered from gout or some such other ailment, which required, that he should live away from Calcutta at Puri. There was an affidavit of a medical man which would suggest that Jatindra Mohan Seal could not live in Calcutta, but had to live away from the city. It was, however, admitted that in the beginning of August Jatindra Mohan Seal had come to Calcutta for some wedding festivities; but it is said on behalf of the plaintiffs that owing to his physical condition he had to leave within a week, which should suggest that he had left Calcutta before August 23 when the search in the Court disclosed who were the personal representatives of the deceased. It was very rightly pointed out that it is not definitely stated in the affidavit that the male plaintiff was not in Calcutta when the search took place. But I think it can be reasonably inferred from all the facts that he had left early in August for Puri and that he was not here in this city on August 23.
7. The question which has to be determined is whether there is a reasonable explanation for the delay which took place in making this application. In other words, was there sufficient cause for not preferring this application to set aside the abatement within the period of sixty days?
8. It was not suggested that the plaintiff was really at fault until August 23. It was mildly suggested at one time that the female plaintiff might have known of the death of the defendant, but it was not seriously argued that much could have been done before August 23. The real case for the defendants was that no sufficient cause had been shown for the delay of fifteen days or so from the expiry of the sixty days until this application was filed.
9. I must confess that this is a border line case; but on the whole I am satisfied that there was material upon which the learned Judge could exercise his discretion in favour of the plaintiff. As I have said the plaintiff was not in Calcutta. If a very strict view be taken, then it could well be held that the plaintiff had ample time to make this application. But it appears to me that in cases of this kind the Court must take a reasonably liberal view. It must not be forgotten that the main cause for delay in the trial of a suit is the Court itself. Often the parties get ready and then have to wait years before the Court can hear them. In such circumstances I do not think that too strict a view should be taken of the conduct of the parties. This matter was considered by a Full Bench of the Allahabad High Court in the case of -- 'Shib Dayal v. Jagannath AIR 1922 All 490 (A). That was a case where the Court held that an honest mistake on the part of a litigant caused by erroneous advice given to him by his vakil in the district, by reason of which an appeal was not filed until the period of limitation therefor had expired, is a good ground for the application in favour of the would-be appellant of the provisions of Section 5 of the Indian Limitation Act.
In the judgment of Banerji, J. it was observed:
'Under Section 5 of the Limitation Act, a petition of appeal may be admitted after the expiry of limitation, if sufficient cause is established to the satisfaction of the Court. What con-stitutes sufficient cause cannot be laid down by hard and fast rules. The sufficient cause must be determined on a reference to circumstances of each case. In my opinion, the expression 'sufficient cause' should be liberally construed so as to advance substantial justice'.
10. This does not mean that the Court will excuse inordinate delay, but it appears to me that the Court should not be too strict as it might well defeat the ends of justice.
11. The matter was also considered by a Bench of this Court in -- 'Kamiruddin Mallik v. Sm. Bishupriya Chowdhurani : AIR1929Cal240 . In that case a learned Judge applying the law very strictly had held a certain application to be out of time and that the delay could not be condoned. Discussing the matter Mukherji J., who delivered the judgment of the Bench observed:
'The Appellant, therefore, has got to account for the period of 17 or 18 days that intervened. The learned Judge, as appears from his judgment, was prepared to make an allowance in favour of the Appellant as regards three days that were taken in obtaining a copy of the order from which, the appeal was preferred. He was prepared also to allow the Appellant a deduction of 2 or 3 days for taking advice from Calcutta as to whether that appeal should be filed or whether a second appeal should be filed as against the decision of the 31st October 1925. He was prepared also to grant the Appellant a further deduction of 2 or 3 days for the preparation of the grounds of appeal. These periods added up together would account for 9 or 10 days.
There would remain a balance of 8 days which, according to the learned Judge, has not been sufficiently accounted for. Now, in making these calculations, I am of opinion that the learned Judge has applied to the case far too exacting a standard and, although the discretion which a Court exercises in connexion with an application under Section 5 of the Limitation Act should not be lightly interfered with, I am of opinion that the delay of 17 or 18 days, under the circumstances aforesaid, is not one that can be considered as unreasonable; or, in other words, I am not satisfied that, in point of fact, there was any want of diligence on the part of the Appellant in preferring the appeal.'
12. I am only referring to this case for Mukerji J.'s observation that the standard to be applied should not be too exacting. In the present case I am satisfied that the male plaintiff who had the conduct of the case was in Puri. Communication even by post is not too rapid these days and I think some time would have to be allowed to the solicitors to decide to communicate and to communicate with the plaintiff at Puri. He would then have to consider the matter and write to the solicitors here. The matter of course could have been done very much quicker than it was. But having regard to all the circumstances I am unable to say that the delay was so unreasonable that it should not have been condoned. Applying a not too exacting standard, or in the words of Banerji, J., in the Allahabad case, applying a 'liberal' construction to the expression 'sufficient cause', I am not satisfied that Banerjee J. was wrong in exercising his discretion in favour of the plaintiffs. As I have said, the case is a border line one, but I am not prepared to disagree with the view of the learned trial Judge.
13. That being so, I would dismiss this appeal. No order is made as to costs.
14. I want to add a few words.
15. I think there were enough materials before the learned Judge on which he was entitled to come to the conclusion that the delay in not making the application up to August 23, 1948 had been sufficiently explained. I am, however, doubtful whether the plaintiffs had accounted for the delay in making the application between August 23, 1948 and September 21, 1948.
16. The only ground suggested by learned Counsel for the petitioner for not making the application within time is that one of the plaintiffs, Jatindra Mohan Seal, went away to Puri in August 1948, after staying in Calcutta for about a week. But it appears that the plaintiffs had their constituted attorney in Calcutta and one of the plaintiffs was in Calcutta.
17. It is also to be observed that in the petition no facts were alleged showing any diligence on the part of the plaintiffs after August 23, 1948. It was for the first time alleged in the affidavit in reply that Jatindra went away to Puri after a week's stay in August and that he returned to Calcutta on October 4, 1948. Even in the affidavit in reply no attempt was made to explain how Jatindra's absence from Calcutta was responsible for the delay in making an application. The application was in fact made when Jatindra was still absent from Calcutta, the affidavit in support of the application being affirmed by the constituted attorney of the plaintiff.
18. The existence of 'sufficient cause' is a condition precedent for the exercise of discretion under Section 5 of the Indian Limitation Act. 'Sufficient cause' must mean a cause beyond the control of the party invoking the aid of the section. A cause for delay which a party could have avoided by the exercise of the care and attention cannot be a sufficient cause. In other words, the Court must be able to say, having regard to the tacts and circumstances of the case, that the delay was ressonable. A cause arising from the negligence of the party cannot be a 'sufficient cause' within the meaning of Section 5, of the Limitation Act.
19. For these reasons I am doubtful whether sufficient cause has been shown why the application for setting aside the abatement should be admitted after the expiry of the period of limitation prescribed for such application.
20. However, the learned Judge has exercised his discretion under Section 5 of the Limitation Act and the exercise of the discretion should not be lightly interfered with by the Appellate Court. As My Lord is also of opinion that the learned Judge has exercised his discretion properly I do not like to press my doubt to the point of dissent.
21. I agree in the order proposed.