KEDAR NATH Vs. L MANAK CHAND

JUDGEMENT

(1.) THE plaintiff, Kedar Nath, who is an advocate, brought a suit for recovery of a sum of Rs. 1,700/-against Ganesh Dass and Sanwal Dass proprietors of the firm Sanwal Dass Ganesh Dass of Katra Shahnashin, Chandni Chowk, Delhi. The amount claimed was in respect of professional fees which remained unpaid by the defendants who had engaged the plaintiff as their counsel.

(2.) THE principal plea of the defendants which found favour with the trial Judge was that the fees claimed by the plaintiff had already been paid to him and nothing more was due to him. It may not be out of place to observe that the plaintiff claimed money from the defendants in connection with a suit for dissolution of partnership and accounts brought against the defendants in the year 1941. This litigation went through many vicissitudes and ultimately there were also proceedings in the High Court at Lahore and admittedly the plaintiff was engaged to represent the defendants there. The present suit was instituted in 1949-50 and it was dismissed on merits by the Court of Mr. Parshotam Sarup, Subordinate Judge 1st Class, Delhi, on 15th of January 1951. An appeal was preferred before the learned District Judge who dismissed the same on 16th of May 1953. The appeal was dismissed because in the opinion of the learned District Judge it was instituted beyond the statutory period of limitation. It was also held by him that Ganesh Dass having died during the pendency of the suit and no application to bring his legal representatives on record having been made within the period of 90 days, the appeal had abated. The lower appellate Court further held that the suit having abated qua the legal representatives of Ganesh Dass there was a possibility of contradictory decrees if the appeal was allowed to proceed against the legal representatives of Sanwal Dass, who also died during the pendency of the suit. In this view of the matter, the abatement was held to be total and the appeal was dismissed with costs. Mehar Singh, J. though he held that the appeal was instituted in time found himself in agreement with the lower appellate Court on both the questions relating to abatement and the decree of the lower appellate Court was accordingly affirmed.

(3.) IN the Letters Patent Appeal before us from the judgment of Mehar Singh, J. , we have heard the learned counsel for the appellant at length and he has left nothing which could conceivably have been urged in favour of the plaintiff-appellant. Ganesh Dass died on 15th of April, 1952, and an application to bring his legal representatives on record was made on 31st of July, 1952. The cause for the delay in making this application was ascribed to the plaintiff's ignorance about the death of Ganesh Dass. Mehar Singh J. , taking into consideration the admitted fact that Ganesh Das was living only at a short distance from the house of the plaintiff, came to the conclusion that the plaintiff had not shown vigilance to entitle him to ask for the Court's indulgence. Ignorance per se is not sufficient to extend the period of limitation; it has to be linked with care and diligence on the part of the applicant and has to be disassociated from laches and negligence in pursuing the appeal. This is the ratio decidendi of the Full Bench decision of this Court in Firm Dittu Ram Eyedan v. Om Press Co. , Ltd. , AIR 1960 Punj. 335. While the applicant is not expected to keep himself informed about the daily health of his contestant in litigation, he should be vigilant and not let any opportunity go by to acquaint himself about such a matter as the death of his rival in suit. The question resolves itself into one of fact and the considerations which influenced the mind of Mehar Singh, J. are not opposed to the principles enuniciated in the Full Bench decision. The learned counsel for the appellant has urged that the house of the appellant is not in the same street as that of Ganesh Dass respondent. It is however, not denied that a short distance separates the two houses. It has been urged by the learned counsel that the appellant was busy in the marriage of his daughter and it is for this reason that he could not gain knowledge about the death of Ganesh Dass. The learned Judge considered this circumstance and we have no reason to take a view different from the one at which he arrived. No sufficient cause was made out for the delay in making the application to set aside the abatement and it has been rightly held that the suit has abated qua the legal representatives of Ganesh Dass. We are not inclined to attach any importance to an order passed by an administrative official of the Court in which the Presence of the defendants' counsel was noted after the death of Ganesh Dass had actually taken place. It was never asserted that the appellant was misled in any way by this routine order written by the Superintendent. We see no reason to disturb the finding of the learned Single Judge that the appeal had in fact abated.