HARDIAL SINGH Vs. BAGGA SINGH

JUDGEMENT

(1.) BAGGA Singh filed a suit against Gurdial Singh and his brother Hardial Singh for possession of 6 Kanals and 18 Marlas of land situated in village Gulwatti, district patiala, on the allegation that the defendants were trespassers on the land. While the suit was being tried Gurdial Singh defendant died. The plaintiff then filed application under Order XXII, Rule 9 read with Section 151, Civil Procedure Code, seeking permission to implead the legal representatives of Gurdial Singh, deceased. This application was opposed by Hardial Singh, defendant, and on the pleadings of the parties the following two issues were framed:--

(2.) IT is not disputed that Gurdial Singh had died on 28th April, 1969 while the application to bring his legal representatives on record was not made till 16th august, 1969. The application having been made beyond 90 days, the suit had abated. The abatement can, however, be set aside under Order XXII, Rule 9, Civil procedure Code, if it is proved that the plaintiff was prevented by sufficient cause from filing the application earlier. In the application for setting aside the abatement the plea taken was that it was on 5th August, 1969 that the plaintiff learnt about the death of Gurdial Singh for the first time. This plea found favour with the learned lower appellate Court for the reason that though the counsel for the parties had appeared on two dates of hearing between 28th April, 1969 when gurdial Singh died and 5th August, 1969 the counsel for Gurdial Singh did not inform the Court about his death. In my opinion, the inference drawn by the learned lower appellate Court was wholly unwarranted. The fact that the lawyer who represented the Gurdial Singh had not learnt about his death for sometime was neither relevant nor material in determining whether the plaintiff could have information about Gurdial Singh's death, if he had exercised due diligence. The argument that because Gurdial Singh's lawyer did not disclose about his death to the trial Court on two the earlier hearings, the plaintiff could not also get information about Gurdial Singh's death is clearly fallacious.

(3.) THERE is also another aspect of this matter. In the application under Order 22, rule 9, Civil Procedure Code, the case of the plaintiff was that he had come to know about Gurdial Singh's death for the first time on 5th August, 1969. When, however, Bagga Singh appeared he made a statement that after twenty days or a month of Gurdial Singh's death he had learnt about it. This statement which was made in the examination-in-chief was again repeated in cross-examination and it was clearly asserted that the information about Gurdial Singh's death had reached him after twenty days of the death. In this statement no reference was made to what had been stated by Bagga Singh in his application as to when he had learnt about Gurdial Singh's death. This being the position, there is no evidence on the record on the basis of which the lower appellate Court could have come to the conclusion that Bagga Singh had received information about Gurdial Singh's death on 5th August, 1969 and not earlier. In fact, the material on the record in this respect is the statement of Bagga Singh and that statement leaves no manner of doubt that the plaintiff had learnt about Gurdial Singh's death within a month. Even otherwise it appears highly probable that Bagga Singh would have learnt about Gurdial Singh's death within in a short time Gurdial Singh was a resident of the same village in which Bagga Singh lived and even if he had died outside the village news about his death was bound to have spread in the village within a short time of the death taking place. Had the plaintiff been vigilant the relevant news would have reached his ears much earlier than 5th August, 1969. No reason has, therefore, been shown for holding that the plaintiff was prevented by any sufficient cause from ascertaining the fact of Gurdial Singh's death. I am, therefore, of the view that the plaintiff had failed to show that there was sufficient cause for not making the application earlier. There is no reason to set aside the abatement.