MIR WAJID ALI Vs. FAGOO MANDAL

JUDGEMENT

(1.) This is an appeal against the order of the Subordinate Judge of Purnea who dismissed the appeal before him on the ground that the appeal had abated. It appears that the appeal before the Subordinate Judge was filed by Mir Wajid Ali, the present appellant, and Karu Mandal happened to be one of the respondents and that he died on 4 January 1933. But before his death, notice of the appeal was served on him on 28 November 1932, and he appeared in Court on 16th December 1932. The formal information of his death was given by his brother on 25 July 1933, and on 1 August 1933, a petition was filed by the present appellant for setting aside the abatement. The lower Appellate Court has held that the reasons given by the appellant for his inability to come before the Court earlier are not satisfactory. He has disbelieved his evidence and come to the conclusion that he must have known the date of death of Karu Mandal much earlier than the appellant professes to do.

(2.) The case for the appellant was that he was informed that his father in law was seriously ill and that he went to see him at village Sanha in the Sub-Division of Beguserai in the District of Monghyr. He also says that he usually lives at Sahidganj, a place which is at a distance of about four miles from the residence of Karu Mandal, the name of the village being Barhari. The learned Judge has disbelieved the evidence of the appellant on the ground that from the records of the case it appears that he appeared in the Purnea Court on 4 March 1933, on 1 April 1933, and on 8 May 1933. Even accepting that he was at Purnea on the dates mentioned by the Court below, it is not difficult to imagine that a man could come to Purnea without knowing all that was going on in the house of Karu Mandal at Barhari. Moreover, when the opposite party came out with a story that it was not only that Kara Mandal was a very big man in the locality, but that the appellant was actually invited to his sradh, the lower Appellate Court has clearly come to the conclusion that this story is rather far fetched. Moreover when the appellant had already succeeded in serving the notice of the appeal on Karu Mandal before his death he had done all that was expected of him to do in connexion with the appeal. It would not be reasonable to expect that he would be inquiring about the health of various respondents from day to day and to find out as to how they were getting on.

(3.) The lower Appellate Court has also held that as Karu was suffering from pthisis, the appellant ought to have known that he was in a weak state of health and any day he might pass away. But the learned Judge does not say as to what type of pthisis he was suffering from or that his condition was so bad that there was imminent danger of Karu Mandal passing away. In this connexion I would like to refer to two decisions of this Court in which it has been pointed out as to what the responsibilities of an appellant are in the case of an appeal about finding out the condition of the respondent.