LACHMI NARAIN Vs. MUHAMMAD YUSUF

JUDGEMENT

(1.) This is an application in form to bring on the record the names of two persons, Gomti Prasad and Kaule-shar Prasad, collateral relatives of the deceased appellant, Lachmi Narain. Lachmi Narain died on the 2nd of July, 1919, and the time for substitution of names, namely, six months, therefore, expired on the 2nd of January, 1920. An application was made to this Court ex parte on the 5th of February, a month and three days beyond time. The learned Judge, who happened to be myself, issued notice to the other side to show cause why in spite of the expiration of time leave should not be given. Mr. M- L. Agarwala, for the plaintiff, appears to show cause, and he has raised certain objections with which it is necessary for me to deal. In the first place he says that there is no order of abatement; and that the application is one to bring certain names on the record and not to set aside any order of abatement. I agree that that is an accurate description of the technical position; but for some reason or another which I have never been able to understand, we have no system in this Court by which, if an appeal abates or is dismissed automatically for breach of some condition precedent, or for" failure to comply with some order such as giving security for costs, an order is automatically drawn up in the ministerial aide of the office recording that the appeal stands dismissed or abated, as the case may be. What happens is, that it is put up amidst a lot of other applications of a similar kind before an unfortunate Judge who has to deal with some rapidity in the half hour allowed for petitions, and the usual order is made, namely, " put up in ordinary course." I have, in my experience, known of more than one such case which has been put up in the ordinary course because it was found that the appeal had abated, and afterwards an adjudication in Court took place; whereas in fact, the appeal abated automatically on the expiration of six months. The absence of any formal order by this Court carrying the abatement into effect cannot serve as an obstacle to any body who wants to put himself right, or to correct some bona fide mistake which has occurred. Therefore I agree with Mr. Durga, Prasad, for the applicant., that in substance this is an application to set aside the abatement under Order XXII, Rule 9, and to allow the names to be substituted and the appeal to proceed in spite of the fact that the six months have expired and the right of appeal abated automatically by law. I hold that I have the right to consider this matter and to decide whether in my opinion the applicant was prevented by any sufficient cause from continuing the appeal, and if I am satisfied on that ground, to set aside that abatement and allow the appeal to be continued on such terms as I think right. Order XXII, Rule 9, is made to apply to appeals by Rule 11.

(2.) Then Mr. Agarwala says that the circumstances of the case do not bring the application within Section 5 of the Limitation Act. Without deciding whether they do or whether they do not, I think I have a duty under Rule 9, Sub-section (2), to decide whether there was sufficient cause independently altogether of Sub-section (3). Sub-section (3) merely provides that the provisions of Section 5 of the Limitation Act shall apply to such applications, so that if the case is one clearly within Section 5 of the Limitation Act the court may rule that that is sufficient cause. But I do not think that that provision confines the sufficient cause mentioned in Sub-section (2) to the circumstances given in Section 5 of the Limitation Act.

(3.) [His Lordship then considered the merits of the case and made an order for substitution conditional upon the applicants depositing security for costs.]