DHANI RAM Vs. MOHAMMAD USMAN

JUDGEMENT

(1.) A question of first impression regarding the construction of section 5 of the Limitation Act arises in this appeal on the following facts.

(2.) The suit of the Respondent No. 1 landlord for arrears of rent against his tenant Banarsi Das was decreed by Sub Judge First Class, Delhi. During the pendency of the first appeal tiled by Banarsi Das, the said Banarsi Das died on 15th July, 1968. One of his legal representatives, namely, his son Shri Ram, made an application on 23rd November, 1968 for being brought on record as the legal representative of the deceased. This application was deliberately vague. It did not even mention the date of the death of Banarsi Das. As it was filed beyond the prescribed period of limitation, no action could be taken on it. On 7th December, 1968 another application was made by two other legal representatives, namely, Shri Dhani Ram and Smt. Shanti Devi, for being brought on record in place of the deceased Banarsi Das under Order XXII rule 3 read with rule 11 Civil Procedure Code. An application under section 5 of the Limitation Act was also made for extension of the prescribed period of limitation for setting aside the abatement of the appeal. The only reason given for the delay in making the application was that the applicants had no knowledge about the pendency of the appeal and that they came to know of it only a day before the application was filed. The application was dismissed by the first appellate Court on the ground that the applicants knew about the death of Banarsi Das when he died, and, therefore, there was no sufficient cause for extending the prescribed period of limitation under section 5 of the Limitation Act. He, therefore, held that the appeal had abated and as the abatement was not being set aside, the decree of the trial Court stood. The appeal was also dismissed as having abated.

(3.) In this second appeal, the main ground on which the first appellate judgment is attacked is that on evidence adduced before the first appellate Court it should have been held that the applicants legal representatives Dhani Ram and Shanti Devi did not know aboat the pendency of the appeal and this was a sufficient cause why their application for setting aside the abatgment of the appeal was delyed within the meaning of section 5 of the Limitation Act. The Respondent No.1 has filed cross-objections only for costs.