PROBODH KR BAJPAYEE Vs. MOHIT KR BANERJEE

JUDGEMENT

(1.) This Rule was obtained against an order dated the 20th of March, 1976 passed by the Munsif, 1st Court at Alipore in Misc. Case No. 24 of 71 arising out of S.C.C. Suit No. 115 of 63.

(2.) The petitioner instituted a suit (No. 115 of 63) at the S.C.C. Court at Alipore against one Manindra Nath Banerjee, since deceased, who was predecessor-in-interest of the opposite parties 1 to 5 and two others as pro forma defendants for recovery of rent in respect of premises No. 303, Diamond Harbour Road. A written statement was filed by the said Manindra Nath Banerjee who alleged that he was a tenant of the land and not of the structure and that his tenancy was governed by the West Bengal Non-agricultural Tenancy Act. The suit was decreed in favour of the petitioner against which a rule was obtained from this High Court being Civil Rule No. 1290 of 1965. On the 8th of July, 1969 the case was sent back on remand for further hearing to the S.C.C. Court. The records were received at the S.C.C. Court on the 8th of Sept., 1969. It appears that the defendant died sometime in the middle of Jan., 1970. On the 30th of April, 1970 the learned Advocate appearing for the said Manindranath Banerjee informed the court that his client had died. The learned court passed an order on 12-2-1971 recording that the suit had abated and giving directions to inform the parties. On 22-3-1971 the petitioner's advocate was informed about the receipt of the records. On 10th of April, 1971 the petitioner came to know about the defendant's date of death and filed an application on the 12th of April, 1971 for substitution of heirs and legal representatives of the deceased Manindranath Banerjee after setting aside abatement under Order 22, Rule 9 and Section 151 of the Civil P. C. A separate application under Section 5 of the Limitation Act was also made. On the 20th of March, 1976 the learned Munsif disallowed the application on contest. The learned Munsif noted that the defendants informed the court on 30-4-1970 of the death of Manindranath Banerjee by filing a petition. He noted the cross-examination of the plaintiff as P.W. 1 and held that the plaintiff was not only "careless and negligent about his case but there has been no doubt carelessness and callousness on the part of the plaintiff......... to file a petition within the prescribed period of limitation". He relied on two decisions and held that mere allegation of the plaintiff in not knowing the defendant's death earlier was not sufficient. He further was of the view that the plaintiff's burden of establishing the reasons of delay was not discharged by cogent and reliable evidence. The said judgment is challenged in this rule.

(3.) Mr. Saktinath Mukherjee, the learned advocate, appearing in support of the rule submitted that the observation made in (Annapurna Debi v. Harosundari Dasi) that mere allegation about the plaintiff not coming to know of defendant's death was not sufficient for the purpose of Order 22, Rule 9, was based on the Supreme Court decision in Union of India v. Ram Charan. In this case the Supreme Court no doubt observed that there was no question of construing the expression "sufficient cause" liberally either because the party in default was the government or because the question arose in connection with impleading of legal representatives of the deceased respondent. The court moreover noted that the provisions of the Code are made with a view to advance cause of justice. The court cautioned against insisting on "overstrict" proof because the question does not relate to the merit of the dispute between the parties and because if abatement is set aside the merits of the dispute can be determined, while if the abatement is not set aside the applicant is deprived of a chance to prove his case. At the same time the court should not readily accept whatever the appellant alleges to explain his default Mr. Mukherjee cited the case of State of Karnataka v. Hulkoti which emphasised these two aspects of the question in not insisting on a strict construction of the expression "sufficient cause". Another case relied on by him was State of West Bengal v. Howrah Municipality in which the Supreme Court said clearly that the words "sufficient cause" should receive liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party.