CHHOTYA Vs. AMAR SINGH

JUDGEMENT

(1.) THE circumstances that give rise to this application for setting aside the abatement order may briefly be stated thus. Chhotya, Gulya etc. presented an appeal in the Board on 18. 9. 1953 against the decision of the Additional Settlement Commissioner, Rajasthan, Jaipur, dated 15. 9. 1953 in a case relating to entries in the parcha chakbandi. Thakur Amar Singh, Jagirdar Thikana Ramgarh, was impleaded as the only respondent in this appeal. 19. 11. 1953 was fixed for hearing in this appeal. As the thikana was under the management of the Court of Wards notices were sent to the Collector, Sawai Madhopur. THE service could not be affected in proper time and hence the appeal was adjourned on 19. 11. 1953 to 9. 2. 1954. It was again adjourned on 9. 2. 1,954 to 13. 4. 1954 and the again on 13 4-1954 to 7. 7. 1954. On this date of hearing i. e. 7. 7. 1954, Dalip Singh son, of Amar Singh raised objection that as he was not brought on record within the prescribed period the appeal should abate. It is an admitted fact that the respondent Amar Singh died on 9. 11. 1953 and that no application for bringing on record the legal representative of the deceased was presented within 90 days. THE period expired on 8. 2. 1954. An application to set aside an abatement order can be brought within 60 days and this period also expired on 9. 9. 1954. No application for abatement was presented during this period. It was on 19. 9. 1954 that the applicants applied for setting aside their abatement order.

(2.) ON behalf of the applicants an affidavit has been filed to the effect that none of them was present in the village when the death of respondents took place and that they had no opportunity of acquiring any knowledge of the respondent's death till 7. 7. 1954 when Dalip Singh brought this fact to their notice. It is difficult to believe that the appellants, living in the same village where the respondent reside, the village being a small one of about 200 dwellings, could possibly have remained ignorant of the respondent's death till 7. 7. 1954. Even if it be assumed for a moment that they came to know of the respondent's death on 7. 7. 1954 they have further to prove that there was sufficient cause for them for presenting the application for setting aside the abatement order 72 days after the knowledge. As decided by the Rajasthan High Court in Seth Nauratan Mal vs. Hari Singh (1951 RLW 303) "it is the duty of an applicant praying for indulgence under sec. 5 of the limitation Act to explain each day's delay satisfactorily and if he fails to do so he cannot get the benefit of sec. 5. The only explanation offered in the case in that the appellants had no money on the day they came to know of the respondent's death. Nothing is said about the subsequent days. It is also significant to observe that the only expenditure to be incurred in applying for setting aside the abatement order related to a stamp of Rs. 1/- only plus some petition-writer's charges. The applicants have not been able to show that they could not manage for such a petty amount continuously for a period of 72 days. We fined no sufficient cause to extend the prescribed period in the case. The application is hereby rejected. .