JAGAR Vs. NATHO

JUDGEMENT

(1.) In this appeal a preliminary objection has been raised on behalf of the respondents that the appeal has abated. An application under Order 22 rule 4, read with section 151, Code of Civil Procedure (Civil Miscellaneous No. 1746/C of 1959) was filed in this Court on behalf of the appellants on the 25th of August 1959 with prayer that Mst. Natho having died, her sons and heirs Gulabal Singh and Harnarain be brought on the record in her place. In this application it is stated that the lady had died about three years earlier in village Bibipur. Tehsil Jind; Bibipur is sated to be about 20 or 22 kos away from the village of appellants. It is also alleged that Mst. Natho was only 40 years of age at the time of her death and no news of her illness or of her demise was ever received by the appellants. Being ignorant of her death, was alleged to be a sufficient ground for extending the period of limitation for filling this petition. On the 9th of September 1959 notice was issued to the counsel for the opposite party by S. B. Capoor, J. On 30-9-1959 Mr. D. N. Aggarwal for the appellant-petitioners and Mr. Shamair Chand for the respondents were present when Shamsher Bahadur J. ordered the application for setting aside abatement to be heard along with the appeal. The position therefore is that Mst. Natho is not represented in this appeal, her legal representatives having not yet been brought on the record.

(2.) Mr. D. N. Aggarwal tries to meet the objection raised by the counsel for the respondents that ignorance of the death of the respondent is by itself a good ground for extending time for the application for setting aside the abatement. In the alternative he contends that the appeal cannot abate as a whole and it should be disposed of on the merits as against Mst. Tehro and Mst. Natho, the other respondents. In my opinion both these contentions are devoid of merit.

(3.) On the death of a respondent it is incumbent on the appellant to cause the legal representatives of the deceased to be made a party and if no application for this purpose is made within the time limited by law, the appeal must abate as against the deceased. Under article 177 of the Indian Limitation Act a period of ninety days is allowed for making such an application and the terminus a quo is the date of the death of the deceased respondent. Even if the appeal has abated the appellant is given another change of approaching the Court for an order to set aside the abatement, and if it is proved that he was prevented by any sufficient cause from continuing the appeal, the Court shall set aside the abatement on such terms as to costs or otherwise as it thinks fit. Under article 171 of the Indian Limitation Act a period of sixty days is fixed for making such an application and the terminus a quo for this purpose is the date of the abatement. It would thus be obvious that the knowledge of the appellant about the death of the respondent does not figure anywhere in these two articles, and therefore prima facie the date of the knowledge of the death would not be relevant for considering the question of limitation. But then by virtue of sub-rule (3) of Order 22 rule 9. (Code of Civil Procedure), the provisions of Section 5 of the Indian Limitation Act have been held to be applicable to applications filed under sub-rule (2). It is clear, from the application filed by the appellants themselves, that their application for setting aside the abatement is hopelessly barred by time, and if time is to be extended under section 5 of the Indian Limitation Act, the appellant must explain the delay of each individual day after the expiry of the period of limitation prescribed by article 171 of the Indian Limitation Act. The application does not contain any explanation in this connection; even the date of the knowledge of the death of Mst. Natho is not mentioned in it nor as to how long after such knowledge the present application was filed in this Court. But this apart, unless the ignorance of the death of Mst. Natho was due to some events beyond the control of the appellants, in my view it would not constitute a sufficient cause. It was of the appellants to state facts for the purposes of establishing that the ignorance was not due either to carelessness or want of diligence on the part of the appellants. It is obvious that the parties are related to each other and it is difficult to believe that the appellants were really ignorant of the death of Mst. Natho, more so when the villages of the parties are not very far from each other, being only about 20 Kos away.