KUNDANMAL UTTAMCHAND Vs. JWALA PRASAD

JUDGEMENT

(1.) THIS revision application has been preferred by the plaintiff against the order passed by the District Judge Gwalior, in Civil Misc. Appeal No. 3 of 1961, arising out of Civil Original Suit No. 295 of 1954 which was held by the Civil Judge First class Gwalior to have abated.

(2.) THE facts material for the disposal of this petition are that the suit in the present case was filed against one Kishanchand for recovery of the price of certain goods supplied by the plaintiff to him. Kishanchand admittedly died on 10-6-1959. No application was made for bringing the legal representatives of Kishanchand on record within 90 days of the date of his death. The suit, therefore, abated on the 9th of September, 1959. The plaintiff submitted an application on 18-9-1959 in which he stated that he had on 10-9-1959 been apprised for the first time of the fact that Kishanchand had died about two months ago. He, therefore, prayed that his two sons Jawalaprasad and Meghraj be brought on record. It was also stated in the application that kishanchard had left him behind two more sons and a widow whose names were not known to the plaintiff jwalaprasad stated on an affidavit that his father died on the night of the 10th of June, 1959. He also produced in support of his affidavit a death certificate issued by the Corporation of the city of Nagpur in which kishanchand is shown to have died on 11-6-1959. Even after this reply had been filed the plaintiff took no steps for applying to the trial Court for setting aside the abatement, till 18-3-1960 when he put up an application stating that he could not know the exact date on which Kishanchand died and prayed that his original application should be allowed under Order XXII rule 9 C. P. C.

(3.) A suit or appeal abates automatically if no application is made for substitution within the prescribed period. It was held in Kirpa Ram v. Bhagat Chand, AIR 1928 lah 746, Vijayasingh v. Shivajirao, AIR 1924 Bom 416 and Firm Gabrulal v. Court of Wards Bilaspur, AIR 1933 Nag 85 that an application to bring the legal representatives of the deceased defendant on record made after 90 days of the death may be treated as an application to set aside the abatement. But in the present case although the plaintiff stated that he learnt about Kisnancnand's death on the 10th of September, 1959, he did not in his application dated 18-9-1959 state the date on which Kishanchand died, nor did he pray for extension of time under Section 5 of the Indian Limitation Act for making the application for setting aside the abatement of the suit. It has been held in Janakinath v. Nirodbaran Kay, air 1930 Cal 422 that in such a case, the application for bringing the legal representatives on record could not be taken as an application for setting aside the abatement. On being apprised of the fact of Kishanchand's death, the plaintiff was bound to ascertain the precise date on which Kishanchand had died. Even in his application dated 18-9-1959 the plaintiff vaguely stated that Kishancnand had died approximately two months ago. Even when Jwalaprasad and Meghraj filed on 6-11961 the original death certificate of Kishanchand the plaintiff maintained his lethargic attitude and took no steps to amend his application dated the 18th of september, 1959 so as to include therein a prayer for the abatement being set aside. No particulars were stated by the plaintiff in his application dated 18-3-1960 in order to explain this inordinate delay. The conduct of the plaintiff in not caring to ascertain, even after 10-9-1959, the exact date of Kishanchand's death and to take timely steps for setting aside the abatement involves, in my opinion, such gross negligence as could not, in the absence of adequate reasons, be overlooked. Where valuable rights have been acquired by the legal representatives, it was held in Ajai Verma v. Ram Bharosey, AIR 1951 All 794 (F8) that the abatement should not be set aside.