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1939 DIGILAW 222 (ALL)

Bhagwan Din v. Muru

1939-11-02

RADHA KRISHNA

body1939
JUDGMENT Radha Krishna J. 1. This is an application; for setting aside an abatement of appeal under the provisions- of Order XXII Rule 9 of the Code: of Civil Procedure. The appeal was a Miscellaneous Appeal under the. Provincial Insolvency Act by Bhagwan Din, Ram Autar and Raghubar against Muru, who had appeared in the Insolvency Court as creditors, 2. The appeal came on for hearing for the first time on the 15th August, 1939, when according to the allegations in the application the appellants came to know for the first time that Muru respondent was dead. 3. On behalf of the applicants there is no evidence as to the exact date of Muru's death but from an affidavit filed by the son of Muru it appears that the date of his death was the 6th January, 1959. In the absence of any counter evidence there is no reason why the date of death alleged in the affidavit by the opposite-party be not accepted as correct. If Muru died on the 6th January, 1939, the appeal abated after 9o days of that date, i.e., on the 6th April, 1939.' The period for an application to set aside the abatement of an appeal is 6o days, which expired during the long vacation. The application if filed on the 12th July, 1939, the day on which this Court reopened after long vacation, would have been within time but it was filed on. the 22nd August, 1939, and is obviously barred by time. The applicants allege in their application that the deceased lived at a considerable distance from the residences of the appellants and that they were ignorant of the fact of the death of Muru up to the 18th July, 1939,. and claim that these facts constitute sufficient cause within the meaning of Section 5 of the Indian Limitation Act, which is applicable to an application; under Order XXII Rule 9 of the Code of Civil Procedure. It is prayed that this application although barred by time, be admitted for the reasons given above. 4. The Counsel for the opposite-party Shiam Lal opposes the application. One, Ramzan has filed an affidavit in which he has deposed that Bhagwan Din, appellant No 1, came to the house of Chheda, the insolvent, whose house is contiguous to the house of the deceased and there the deponent informed Bhagwan Din of the death of Muru. 4. The Counsel for the opposite-party Shiam Lal opposes the application. One, Ramzan has filed an affidavit in which he has deposed that Bhagwan Din, appellant No 1, came to the house of Chheda, the insolvent, whose house is contiguous to the house of the deceased and there the deponent informed Bhagwan Din of the death of Muru. Shiam Lal, the son of Muru, has filed a separate affidavit deposing that Bhagwan Din used to visit Chheda insolvent, whose house is very near to the house of the deceased, and that Bhagwan Din came to Chheda's house within a few days of Muru's death. There is no reason to disbelieve the affidavits of Ramzari and Shiam Lal, the opposite party, and on the facts deposed, in their affidavits it must be held that there is no sufficient cause for admitting this application after the expiry of the period fixed by law. Moreover, the only ground for setting aside the abatement alleged in the application is that the appellants lived at a distance from the deceased and that they were ignorant of his death. 5. The learned Counsel for the applicants has relied upon Lakshmi Chand v. Behari Lai (1932) 54 All. 280 in which it was held that ignorance of death, in the absence of any negligence or any other act or omission for which the applicant could be held responsible, could be deemed to be sufficient cause within the meaning of Section 5 of the Indian Limitation Act. It is alleged that there is nothing in the case to suggest that the applicants were guilty of any negligence or any omission for which they could be held responsible. Reliance has further been placed upon The Secretary of State for India in Council Vs. It is alleged that there is nothing in the case to suggest that the applicants were guilty of any negligence or any omission for which they could be held responsible. Reliance has further been placed upon The Secretary of State for India in Council Vs. Vinjamuri Kistnamacharyulu (L.R. of the deceased), AIR 1938 Mad 218 in which the learned Judges held that it was not the duty of the appellant to make periodical inquiries as to whether the respondent is alive and, ignorance of the death of the respondent in the absence: of any negligence or any other act or omission for which the appellant can be held responsible is sufficient cause within the meaning of Section 5 of the Indian Limitation Act to excuse the delay in seeking to set aside the abatement In my opinion it is too general a rule to lay down that it is not incumbent upon the appellant to an appeal to make periodical inquiries as to whether the respondent is alive or not The procedure provided for the disposal of suits and appeals demands an active prosecution and great vigilance on the part of the parties to a litigation. I am of opinion that an appellant in the prosecution of his appeal is under an obligation to keep himself informed as to the existence of his opponent. As far back as 1918, Mr. Lindsay (later Mr. Justice Lindsay) held to the same effect in Mohammad Askari v. Lalu (1918) 21 O.C. 68 and this decision has been followed recently by this Court in Sarju Prasad v. Sarju Bakhsh Singh 1933 O.W.N. 371. Mere ignorance of the death of the opposite-party has never been held to be a sufficient ground for setting aside an order of abatement. Some High Courts have held that ignorance of death in the absence of negligence or other act or omission for which the applicant could be held responsible should be held to be sufficient cause within the meaning of Section 5 of the Indian Limitation Act In my opinion the qualification imposed by the words "in the absence of any negligence or other act or omission" is a limitation of a very vague character. An appellant, who after filing his appeal, sleeps over his appeal must in the absence of any other evidence be held to be negligent. An appellant, who after filing his appeal, sleeps over his appeal must in the absence of any other evidence be held to be negligent. In the present case the applicants took no notice of what was happening to their appeal till the 15th August, 1939, the date fixed for hearing of the appeal and 1 think that in the absence of any evidence to the effect that they were prevented from keeping themselves in contact with the progress of the appeal they must be held to be negligent or guilty of such omission on their part which would disentitle them to the benefit of Section 5 of the Indian Limitation Act. In Sarju Prasad v. Sarju Bakhsh Singh, the case to which I have already made reference the facts were almost identical with the facts of the present case. The learned Judges observed that the ignorance was not excusable because there were no circumstances in which the ignorance of death could be held excusable. To lay the burden of proving negligence on the part of the applicant on the opposite party will in my opinion be holding that a mere ignorance of death would establish sufficient cause within the meaning of Section 5 of the Indian Limitation Act. In the present application all that has been said is that the applicants were ignorant of the death of the respondent and the respondent lived at a distance from the house of the applicants. In my opinion no sufficient cause as contemplated by Section 5 of the Indian Limitation Act has been made out in the present case. 6. The result is that the application is rejected with costs.