S NARASIMHAIAH Vs. ABDUL RAZAK ALIAS PAPA SAHEB

JUDGEMENT

(1.) HEARD the learned Counsel for the applicant-appellant.

(2.) THE sole respondent in the appeal Sri Abdul Razak alias Papa Saheb died on 6-6-1992. No application for substitution of the names of the heirs of deceased Abdul Razak, respondent has been made earlier than the application LA. III. LA. III has been moved on 17-7-1996. The law prescribes 90 days period for moving the application for substitution of the names of the heirs of deceased. If no application is made within 90 days of the date of death, the appeal automatically stands abated against the deceased respondent even if no order of abatement is passed. From the date of abatement again the appellant has got 60 days period for moving the application for setting aside the abatement and for substitution of the names of the heirs of the deceased. Thus in total a period of 150 days is made available. If the application for setting aside the abatement is not made within 150 days from the date of death of the party, then he has to explain the delay at least from the last day of 150 days period and explain with sufficient cause, if not very strictly mathematically at least in such a manner that may be plausible and understandable as to why application for substitution could not be moved earlier. In the present case, it has been stated that the delay in moving the application for substitution has been delayed because the appellant did not know about the death of respondent. The allegation to the effect that the applicant or appellant had no knowledge of the death is not sufficient cause. Applicant must indicate the reasons what prevented him from knowing about the death of the deceased-respondent. (See Union of India v Ram Charan ). In the present case, the appellant and the deceased respondent are residents of Halagur in Malavally taluk i. e. , they are the residents of the same village. Then what prevented the applicant from knowing about the factum of death? Common knowledge is that in town and village people are more conversant and they come to know such happenings in the village. Had that been the case that the deceased been the resident of a different place, different district or different area than that of the applicant-appellant, perhaps that would have made a reasonable cause for not knowing about the death of the respondent. But in the present case, both are the residents of same area. Hence, it is unbelievable that the applicant could not come to know about the death of the respondent. One reason given in the affidavit is not understandable and cannot be believable. In the affidavit applicant says, because the deceased belonged to a different community than the appellant, so the appellant could not come to know about the death. No doubt as it appears from the description of the parties one is a Hindu and other is a Muslim. Appellant is a Hindu and the respondent is a muslim. This cannot be sufficient cause for appellant not coming to know about the death of the respondent with whom he has been having litigation. The cause shown is unbelievable. There is no other cause been shown and it appears that the delay has been due to the negligence of the appellant. If the acquaintance could have told the appellant about the death of the respondent on 26-6-1996, there is no reason to believe that acquaintance of the appellant could not and would not have informed him earlier.

(3.) THUS considered, the cause shown for delay is unbelievable as well as insufficient. Therefore the Court refuses to exercise its power under Section 5 of the Limitation Act, as this power can be exercised only on establishment of sufficient cause by the applicant. Thus application for setting aside abatement as well as application for substitution both having become barred by limitation are hereby dismissed. Thus, the application for condonation of delay and application for setting aside abatement and application for substitution as well as application for appointment of guardian are all hereby dismissed by one common order. Thus in short LA. I, LA. II, LA. III and I. A. IV are hereby rejected and dismissed as the sole respondent has died and the appeal has abated against the sole 'respondent. It has to be abated in toto and thus this second appeal is dismissed as having abated in toto.