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Mehtab Chand Vs. Shriratan Mohta and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 117 of 1950
Judge
Reported inAIR1953Cal367
ActsCode of Civil Procedure (CPC) , 1908 - Order 22, Rule 9(2)
AppellantMehtab Chand
RespondentShriratan Mohta and ors.
Appellant AdvocateA.N. Sen, Adv.
Respondent AdvocateP. Mallick and ;B. Choudhury, Advs.
DispositionAppeal dismissed
Excerpt:
- .....plaint as aforesaid could not be made within 90 days from the said 15-12-1949.' this paragraph is verified upon information received from the plaintiff. when we asked counsel for the plaintiff as to how that information was received he said that a relation came from jaipur and gave, information, a story which is often said in court, but which is never believed unless there is corroborative evidence. in this case there is no such evidence. 3. in the affidavit in reply the plaintiff sets out a medical certificate which runs as follows: 'this is to certify that setji mehtab chand bhandia (plaintiff) is suffering from chronic rheumatoid anthrities of the knee-joints and that he is not fit to get about for the present (for about a month). he is advised complete rest and adequate treatment.'.....
Judgment:

Banerjee, J.

1. This suit was filed on 14-8-1945 for redemption of certain jewellery. The written statement was filed on or about 19-11-1945. The defendant died intestate on 15-12-1949, leaving him surviving a widow, Sm. Tarabai and two sons, Sri Ratan and Brij Ratan and his heirs and legal representatives.

2. On 16-12-1949, the plaintiff's attorney was informed of the death and on 20-12-1949, the names of the heirs and legal representatives of the deceased were furnished to the plaintiff's attorney. On 4-1-1950, the plaintiff's attorney wrote to the defendant's attorney that he had 'written to his client for information'. On 28-2-1950, the plaintiff's attorney wrote to the defendant's attorney asking for information about the date of the death of the defendant. That was duly supplied. On 20-3-1950, the defendant's attorney wrote to the plaintiff's attorney that the suit had abated. To that the plaintiff's attorney replied:

'I have now been instructed to make the necessary application to the Court.'

The notice of motion of the application out of which this appeal arises was taken out on 8-5-1950, and the application for setting aside the abatement was moved before Bachawat J. on 10-5-1950 when it was noted as made on that day. The application was heard on 23-5-1950 and was dismissed by his Lordship. No judgment was delivered. The petition in support of the notice of motion is not verified by the petitioner himself but by one Janaki Nath Roy who is a clerk in the employ of the plaintiff's attorney. The relevant paragraph in the petition is para 8 in which it is stated that the petitioner on that date, namely, the date when the petition was affirmed, was at Jaipur: he was informed of the death of the defendant on or about 22-12-1949 and

'as your petitioner has been suffering from rheumatism the application for recording the death, the substitution of the defendants and the consequent amendment of the plaint as aforesaid could not be made within 90 days from the said 15-12-1949.'

This paragraph is verified upon information received from the plaintiff. When we asked Counsel for the plaintiff as to how that information was received he said that a relation came from Jaipur and gave, information, a story which is often said in Court, but which is never believed unless there is corroborative evidence. In this case there is no such evidence.

3. In the affidavit in reply the plaintiff sets out a medical certificate which runs as follows:

'This is to certify that Setji Mehtab Chand Bhandia (plaintiff) is suffering from chronic rheumatoid anthrities of the knee-joints and that he is not fit to get about for the present (for about a month). He is advised complete rest and adequate treatment.'

This certificate is not strictly admissible in evidence. The statement in the certificate has not been verified by anybody. But assuming that we take the certificate into consideration--what information does it convey to Court? The information conveyed is that the plaintiff was suffering from chronic rheumatoid anthrities. It does not say that he was unable to verify a petition. All that the certificate says is that he was not fit to get about, which we understand means that he was not fit to walk about. But the plaintiff's attorney had all the informations he required for a petition for substitution. He could make the petition ready and send it to Jaipur to be verified by the petitioner, but that was not done. We cannot see how his illness could prevent the plaintiff from continuing the suit. After 90 days, the Code of Civil Procedure says that the suit abates and Order 22 Rule 9(2) gives the plaintiff an opportunity to make an application for setting aside the abatement; but the condition is that he must satisfy the Court that he was prevented by any sufficient cause from continuing the suit. It is then and then only that the Court sets aside the abatement. What is sufficient cause is difficult and undesirable to attempt to define precisely. It depends on the circumstances of each case. But one thing is clear that though the Court does not apply too exacting a standard of diligence, if there is a delay, which in the circumstances of the case the Court thinks unreasonable, the Court does not exercise the discretion conferred on it under Order 22 Rule 9 Sub-rule (2). In this case in my view the plaintiff has not shown sufficient cause. In fact he has not shown any cause at all. He says that he was suffering from a chronic illness. That did not prevent him from continuing thesuit. The delay therefore has not been explained at all and we are disposed to take the view that the plaintiff has been dilatory in the conduct of the suit. The learned Judge has exercised a discretion in the matter and we think he has exercised his discretion rightly.

4. The appeal, therefore, is dismissed with costs.

Harries, C.J.

5. I agree.


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