KARNATAKA BANK LIMITED Vs. NAZEER AHMED SIDDIQUI

JUDGEMENT

(1.) In the money suit filed by the appellant herein the 1st defendant is a principal debtor and the 2nd defendant a Surety. The suit is for recovery of Rs. 14.879/- filed in the year 1980. After the suit came up for hearing the 2nd defendant died on 2-1-1982 and a memo to that effect came to be filed by the counsel for the defendants on 9-3-1982. The same was noted in the order sheet and on that date the plaintiffs counsel was absent. However the court acting on this memo posted the suit for taking steps for bringing the legal representatives of the 2nd defendant on record to 5-4-1982. On that date the plaintiffs counsel was present but the defendants counsel absent. On the request made by the plaintiffs counsel the suit was adjourned to 9-6-1982. On 9-6-1982 the Presiding Judge happened to be on leave therefore it was called in court on 7-7-1982, on which date neither the plaintiffs counsel nor the defendants' counsel was present. Steps were not taken and the court ordered that the suit against the 2nd defendant abated. It has also stated therein that later the plaintiffs counsel appeared. When the suit stood adjourned for evidence to 10-8-1982, on the next date of hearing on 30-8-1982 I.As-II & III came to be filed perhaps in office as the suit was not in the cause list on that date. I.A.II is under Order 22 Rule 9 CPC for setting a side the abatement against 2nd defendant whereas I.A.III is under Order 22 Rule 4 CPC for permission to bring his legal representatives on record. The two applications however remained pending for nearly two years thereafter. It was on 27-3-1984 that I.A.IV was filed by the appellant under Section 5 of the Limitation Act for condonation of delay in applying for setting aside the abatement for the reasons stated in the affidavit. Thereafter I.A.V came to be filed by the Advocate for the applicant-plaintiff on 20-7-1985 for permission to file memorandum of facts appended thereto. On hearing both sides a common order came to be passed by the trial court rejecting all these applications.

(2.) The grounds on which the applications came to be rejected are firstly that I.As.II & III were not accompanied with an application for condonation of delay and secondly that the affidavit of the official of the Bank did not satisfy the court that he came to know of the death of the 2nd defendant at the time when he swears that he came to know. As a matter of fact according to the court below on 5-4-1982 itself the counsel for the plaintiff came to know of the date of death and therefore the delay in filing the applications after the limitation prescribed for the same had expired was not properly explained.

(3.) It is urged in this Court in challenging the said order that the court below ought to have believed the affidavit statement of the official of the Bank when he stated about the date of his knowledge of the death of the 2nd defendant. Secondly though I.A.IV was filed nearly two years after the date of death was reported the application requires to state the cause for not filing the applications in time and it is no where provided as a mandatory requirement that application under section 5 should accompany the applications under Order 22 Rule 4 and Order 22 Rule 9 CPC. It is also canvassed that the Manager of the Bank has stated how and when he was informed by his counsel and the same cause is stated in the affidavit filed by him. The respondents' counsel however has urged that there are no bona fides of this official in as much as the information of date of death of the 2nd defendant must be deemed to have been conveyed to him soonafter their Advocate came to know of it which was on 5-4-1982. Therefore the cause shown in the affidavit in support of I.A.IV cannot be considered as sufficient cause so as to entitle the applicant to file these applications.