JUDGMENT 1. THIS is an application, substantially for setting aside the abatement of a suit. The suit was filed in 1953 on a hundi under Order 37 of the Code of Civil Procedure. On an application by the defendant No. 2, Sitanath Paul, for leave to enter appearance and defend the suit, leave was granted on certain terms with which he duly complied and filed his written statement. It appears that in March 1955 the affidavits of documents were filed by the respective parties and the suit was lying ready to be transferred to the prospective list. On 21st August 1957, for some reason, the suit appeared in the special list and by an order made on that date the suit was placed in the prospective list. 2. THEREAFTER, the suit was not heard of until it appeared in my warning list of May 26, 1966. It appeared in the daily list on 31st May and again on 2nd June. On the latter date, Mr. S. N. Deb, solicitor for Sm. Surabala Dassi, the mother and one of the legal representatives of Sitanath Paul stated in Court that Sitanath had died on 2nd June 1962 and the suit has abated against him. Thereupon, on the prayer of the plaintiff, the suit was adjourned by me for a fortnight to enable the plaintiff to make an application for setting aside the abatement. On the 7th June 1966, Mr. S. N. Deb wrote to the plaintiff's solicitors messrs. P. C. Ghose and Co. in these terms:-You are aware that the defendant no. 2, Sitanath Paul had died intestate on the 20th June 1962, leaving my client, one of his heirs and legal representatives and the suit against him has abated. In reply, Messrs. P. C. Ghose and Co. wrote on the 8th June, 1966 that their client, the plaintiff had since come to know that the defendant No. 2, Sitanath had died leaving him surviving certain heirs The names of the heirs and their relationship with the deceased were indicated in the letter. 3. IT appears that in 1961 Sm. Surabala, the mother of Sitanath instituted a suit in this. Court against Sitanath and others for partition of a joint estate. In that suit, Sitanath entered appearance through Messrs. P. C. Ghosh and Co. It also transpires that in 1962, sometime after the death of Sitanath, Messrs. P. C. Ghosh and Co. 3. IT appears that in 1961 Sm. Surabala, the mother of Sitanath instituted a suit in this. Court against Sitanath and others for partition of a joint estate. In that suit, Sitanath entered appearance through Messrs. P. C. Ghosh and Co. It also transpires that in 1962, sometime after the death of Sitanath, Messrs. P. C. Ghosh and Co. came to know of his death and acted in the matter of an application for substitution of the heirs of Sitanath in that suit. 4. IT is contended before me on behalf of Sm. Surabala that the plaintiff was aware of the death of Sitanath soon after his death. It is stated in the affidavit of Harinath Paul made on Surabala's behalf that the plaintiff's brother used to visit occasionally the residence of Sitanath and therefore the plaintiff's contention that he has no knowledge of the death of Sitanath during all these years cannot be accepted. It is also contended that since messrs. P. C. Ghosh and Co. had notice and knowledge of the death of Sitanath in 1962 in the partition proceedings the plaintiff had knowledge and notice of the death of Sitanath on the principle that knowledge of the plaintiff's solicitor is to be imputed to the plaintiff. 5. THE plaintiff has stated in his petition that on June 2, 1966, while he was attending Court he came to know for the first time that Sitanath was dead when Mr. S. N. Deb, solicitor for Surabala stated in Court that the suit has abated. In his affidavit-in-reply, the plaintiff has stated that he came to know subsequently that his solicitors, Messrs. P. C. Ghose and Co., were also solicitors for Sitanath in the partition suit. He has also stated that Sitanath was a middle-aged person and appeared to be quite healthy and well. He has admitted that his brother had dealings with Sitanath but has not admitted that his brother used to go occasionally to the residence of Sitanath as alleged by Harinath in his affidavit. It is his case that he had no knowledge of the application for recording the death of Sitanath in the partition suit and his solicitors had no reason or occasion to impart to him any information of Sitanath's death as his solicitors did not connect Sitanath Paul of the partition suit with Sitanath Paul of this suit. It is his case that he had no knowledge of the application for recording the death of Sitanath in the partition suit and his solicitors had no reason or occasion to impart to him any information of Sitanath's death as his solicitors did not connect Sitanath Paul of the partition suit with Sitanath Paul of this suit. He had also stated that he and the members of his family have no social contact with Sitanath or members of Sitanath's family and that Sitanath and he resided in different parts of the city. He contends that it was the duty of the solicitors of Sitanath to intimate to his solicitors that Sitanath had died in 1962 and as no such intimation had been received he and his solicitors bona fide believed that Sitanath was alive. 6. ON the affidavits it is difficult to hold that the plaintiff had actual knowledge of Sitanath's death. There is no averment in the affidavit of Harinath that the Plaintiff's brother visited Sitanath's residence after his death. All that Harinath has said in his affidavit is that the plaintiff's brother visited Sitanath occasionally in the past. He has not said when these visits took place. Moreover, there is no evidence that the plaintiff and his brother lived together. It is true that in 1953 in the application for leave to defend the suit, certain allegations were made by Sitanath against the plaintiff's brother which the plaintiff's brother dealt with in an affidavit filed by him. There is no evidence however that in 1962, the plaintiff's brother had close contact or any contact with the plaintiff or that the plaintiff's brother knew of Sitanath's death. It appears from the cause title of the suit that the plaintiff and Sitanath lived in different parts of the city and there was no particular reason why in the facts and circumstances of this case, the plaintiff should have enquired from time to time whether Sitanath was alive or not. In these circumstances, I do not find that the plaintiff had actual knowledge of Sitanath's death. I now proceed to deal with the more interesting aspect of the matter as to whether in law, knowledge of the plaintiff's solicitors of Sitanath's death which was acquired by them in some other proceedings to which the plaintiff was not a party is to be imputed to the plaintiff. I now proceed to deal with the more interesting aspect of the matter as to whether in law, knowledge of the plaintiff's solicitors of Sitanath's death which was acquired by them in some other proceedings to which the plaintiff was not a party is to be imputed to the plaintiff. A solicitor is the agent of his client for the purpose of the proceedings in which he is engaged. If any notice of Sitanath's death had been given to Messrs. P. C. Ghose and Co. in this suit or if Messrs. P. C. Ghose and Co. had come to know of Sitanath's death in the course of these proceedings or while acting in these proceedings the notice to or knowledge of Messrs. P. C. Ghose and Co. would have amounted to notice to or knowledge of the plaintiff. If, however, the solicitors had knowledge of Sitanath's death in some other proceedings to which the plaintiff, was not a party and in which the solicitors were not acting for the plaintiff, can it be said that the solicitors' knowledge of the death of Sitanath is, in law, knowledge of the plaintiff ? 7. IN this connection, it is relevant to refer to Section 229 of the Indian contract Act which reads as follows :- Any notice given to or information obtained by the agent, provided it be given or obtained in the course of the business transacted by him for the principal, shall, as between the principal and third parties, have the same legal consequences as if it had been given to or obtained by the principal. 8. IN the present case, the information obtained by Messrs. P. C. Ghose and Co. in the partition suit cannot be said to have been obtained in the course of the business transacted by Messrs. P. C. Ghose and Co. for the plaintiff who engaged them to act for him in this suit. In (1) Raja Rampal Singh v. Balbhaddar Singh, 29 Indian Appeals, 203 it was held that knowledge acquired of a lease, by the appellant's mookteer in certain mutation proceedings to which the appellant was a party was to be imputed to the appellant in a suit for declaration that the lease was invalid. In (1) Raja Rampal Singh v. Balbhaddar Singh, 29 Indian Appeals, 203 it was held that knowledge acquired of a lease, by the appellant's mookteer in certain mutation proceedings to which the appellant was a party was to be imputed to the appellant in a suit for declaration that the lease was invalid. Lord Davey who delivered the judgment of their Lordships said :- "the learned Judicial Commissioner in holding that the appellant had notice through his mookteer applied a well-known and universal rule of law to the facts before him. By section 229 of the Indian Contract Act, it is enacted that any notice given to or information obtained by an agent in the course of his business transacted by him for the principal shall as between the principal and the third parties have the same legal consequences as if it had been given to or obtained by the principal. And the same is repeated in Section 3 of the Transfer of Property Act, 1882. It May be that these enactments are not directly applicable to the matter now in dispute, but they are only declaratory of a general principle of law. That principle is in an especial sense applicable to legal proceedings which are usually conducted through an agent, and it would be impossible to conduct such business, and it would lead to grave inconvenience and injustice, if it were required to prove afterwards that the client had personal knowledge of the contents of the pleadings, or of some documents in suit, or of general nature of the claim made against him. It is not a mere question of constructive notice or inference of fact, but a rule of law which imputes the knowledge of the agent to the principal, or (in other words) the agency extends to receiving notice on behalf of the principal of whatever, is material to be stated in the course of the proceedings," 9. IN this connection, it is necessary to remember that the appellant's mookteer had obtained the relevant information in course of allied proceedings to which appellant was a party and not in some other proceedings to which the appellant was not a party and which had no connection whatsoever with the proceedings with which their Lordships were concerned. 10. IN this connection, it is necessary to remember that the appellant's mookteer had obtained the relevant information in course of allied proceedings to which appellant was a party and not in some other proceedings to which the appellant was not a party and which had no connection whatsoever with the proceedings with which their Lordships were concerned. 10. IN (2) Chabildas Lalloobhai v. Dayal Mowji, 34 I. A. 179, where mortgagees in exercise of their power of sale prescribed a certain condition of sale and the purchaser completed his contract for purchase without any notice of the condition, it was held that he was not affected by notice and that his employment of the mortgagee's solicitors as his agents subsequently to the contract did not affect him with connective notice of the condition which was known to the mortgagee's solicitors. In the judgment Sir Arthur Wilson said when the contract of sale was sighed the transaction was completed so far as it rested in contract, and the rights and liabilities of the parties arising out of that contract were ascertained and were enforceable. Down to that point the attorney was not acting for the purchaser. The only thing in which he did so act was the subsequent preparation of the conveyance. The view of the Court of Appeal imputes to a principal the knowledge of an agent, not acquired in the matter for which he was agent, and uses it to upset the transaction of a date before the agency commenced. This is an extension of the doctrine of constructive notice" in which their Lordships cannot concur They therefore think the judgment and the decree under appeal cannot be supported on the grounds relied upon by the Court of Appeal. " The decision of the Privy Council in rampal singh v. Balbhadar singh (Supra) was considered by a Division Bench of Nagpur High court consisting of B. P. Sinha, C. J. and hidayatulla J., in (3) Ratansi V. Jay Singh, A. I. R. 1954 Nagpur 348. In that case, judgment was given in an appeal from an order made in an application for setting aside the abatement of an appeal. The appellant's pleader, in certain proceedings to which both the appellant and the respondent were parties obtained information that the respondent had died. In that case, judgment was given in an appeal from an order made in an application for setting aside the abatement of an appeal. The appellant's pleader, in certain proceedings to which both the appellant and the respondent were parties obtained information that the respondent had died. On receipt of this information, an application for substitution was made in which the appellant's pleader appeared for the appellant Subsequently, the same pleader was engaged by the appellant to act for him in an appeal and after he had been engaged in the appeal, the appellant applied for setting aside the abatement of the appeal. It was contended that as the appellant's pleader had acquired the knowledge of the respondent's death in the former proceedings, the appellant had knowledge of or constructive notice of the respondent's death long before the period of limitation had expired. In the judgment, the Court observed as follows: it was argued on the strength of Raja Rampal Singh v. Balbhadar Singh (Supra), that the knowledge of the agent must be attributed to the principal. We do not wish to extend this doctrine to a pleader engaged for another case without proof that the pleader was authorised to act in this case. To hold otherwise would introduce much uncertainty in litigation and neglect of counsel might without justification be attributed to the litigant. There being no circumstances present justifying the application of the principle to this case we dismiss it from consideration. 11. IN those circumstances, it was held that the knowledge which the pleader had acquired in other proceedings to which the appellant was a party should not to imputed to the appellant in proceedings in which the pleader was subsequently engaged. In the present case, the plaintiff's solicitors acquired knowledge of Sitanath's death after and not before they were engaged by the plaintiff. The test, however, is not when the solicitors came to know of the death of the opposite party but whether they acquired the knowledge in the course of the same proceedings in which they were acting for their client. 12. IN this connection, reference may be made to the interpretation of "notice" in Section 3 of the Transfer of property Act which is in pari materia with section 229 of the Indian Contract act. 12. IN this connection, reference may be made to the interpretation of "notice" in Section 3 of the Transfer of property Act which is in pari materia with section 229 of the Indian Contract act. Explanation III states that a person shall be deemed to have had notice of any fact if his agent acquires notice thereof whilst acting on his behalf in the course of business to which that fact is material provided that, if the agent fraudulently conceals the fact, the principal shall not be charged with notice thereof as against any person who was a party to or otherwise consignment of the fraud. In (4) Wyllie v. Pollen, (1863)L. J. New Serbs Vol. 32 Equity 782 it was held that in order to affect a principal with constructive notice of facts within the knowledge of an agent, it necessary that the knowledge should be derived from the same transaction. The law on the subject has been stated in Bowstead on Agency 12th Edition p. 242 in these terms: "where any fact or circumstance, material to any transaction, business, or matter in respect of which an agent is employed, comes to his knowledge in the course of such employment, and is of such a nature that it is his duty to communicate it to his principal, the principal is deemed to have notice thereof as from the time when he would have received such notice if the agent had performed his duty, and taken such steps to communicate the fact or circumstance as he ought reasonably to have taken provided that - (a)where an agent is party or privy to the commission of a fraud upon or misfeasance against his principal, his knowledge of such fraud or misfeasance, and of the facts and circumstances communicated therewith, is not imputed to the principal, and (b)where the persons seeking to charge the principal with notice knew that the agent intended to conceal his knowledge from the principal, such knowledge is not imputed to the principal. Knowledge acquired by an agent otherwise than in the course of his employment on the principal's behalf of or any fact or circumstance which is not material to the business in respect of which he is employed, is not imputed to the principal," 13. IN the present case, as the knowledge acquired by Messrs. P. C. Ghose and Co. Knowledge acquired by an agent otherwise than in the course of his employment on the principal's behalf of or any fact or circumstance which is not material to the business in respect of which he is employed, is not imputed to the principal," 13. IN the present case, as the knowledge acquired by Messrs. P. C. Ghose and Co. of Sitanath's death was not acquired in the course of their employment on the plaintiff's behalf, such knowledge cannot be imputed to the plaintiff either under section 229 of the Indian Contract Act or under general principles. 14. IN this connection, it is necessary to remember that a firm of Solicitors often acts in a large number of matters for a large number of parties and in so acting different partners or assistants have to look after different matters It is not reasonable to expect every partner or assistant to acquire information relevant to the matters in his charge which other partners or assistants have acquired in other proceedings nor is it practicable for Solicitors to communicate information to a client which they have received in other proceedings to which he is not a party or in which the solicitors are not acting on his behalf More often than not it will be the duty of the solicitor not to disclose information relating to a client's affairs to his other clients. By this, of course, I do not intend to mean that in the facts of the present case, if Messrs. P. C. Ghose and Co. had communicated the information of Sitanath's death to the plaintiff they would have committed any breach of their duty as Solicitors. I only intend to say that Messrs. R C. Ghose and Co. did not owe any legal duty to communicate the information to the plaintiff. It now remains for me to consider whether the plaintiff remained ignorant of Sitanath's death on account of negligence or lack of diligence on his part. On the question as to whether ignorance of death is a sufficient cause for setting aside the abatement within the meaning of Order XXII, Rule 9, decisions are many. It now remains for me to consider whether the plaintiff remained ignorant of Sitanath's death on account of negligence or lack of diligence on his part. On the question as to whether ignorance of death is a sufficient cause for setting aside the abatement within the meaning of Order XXII, Rule 9, decisions are many. The general principle which emerges from these decisions is that this is a sufficient cause when ignorance is not due to negligence or laches In (5) Union of India v Ram Charan, A. I. R. 1964, S. C., 215 the Supreme Court said that the Court, in considering whether the appellant has established sufficient cause for his not applying for setting aside of the abatement within time, need not be over-strict in expecting such proof of the suggested cause as it would accept for holding a certain fact established both because the question does not relate to the merits of the dispute between the parties and because if the abatement is Set aside, the merits of the dispute can be determined while, if the abatement is not set aside, the appellant is deprived of the opportunity of his proving his claim on account of his culpable negligence or lack of vigilance. The Court also observed that it is no duty of the appellant to make regular enquiries from time to time about the health or existence of the respondent, but it does not mean that the mere fact of the appellant coming to know of the respondent's death belatedly will, by itself, justify his application for setting aside the abatement. It is for the appellant in the first instance, to allege why he did not know of the death of the respondent earlier or why he could not know about it despite his efforts, if he had made any efforts on having some cause to apprehend that the respondent might have died. 15. IN the facts and circumstance of the present case, there does not appear to have been any cause for apprehension that Sitanath might have died. 16. MY attention was drawn to the case of (6) Sarat Chandra Sarkar v. Maihar Stone and Lime Co. Ltd., 1922 A. I. R., Cal., 335. That was a suit for price of goods sold and delivered. The suit was filed on the 1st September, 1916. The written statement was filed on the 2nd June, 1917. 16. MY attention was drawn to the case of (6) Sarat Chandra Sarkar v. Maihar Stone and Lime Co. Ltd., 1922 A. I. R., Cal., 335. That was a suit for price of goods sold and delivered. The suit was filed on the 1st September, 1916. The written statement was filed on the 2nd June, 1917. No steps were taken by the plaintiff's with the result that on the 22nd December 1920, the case appeared in the Special List. On the 22nd December 1920, the learned Judge, on the plaintiff's attorney's prayer, directed that the case should appear on the 3rd January 1921 and the plaintiff's attorney should then state what steps he had taken. The plaintiffs said that only on the 26th December they discovered that the defendant had died on the 24th December, 1918 as a result of enquiry which was made after the matter appeared in the Special List but the plaintiff's attorney took no steps. The case came in the list on the 12th January 1921 and the learned Judge made an order that an application for revival should be made within a month and that in default the suit should be dismissed with costs. Even then the plaintiffs did not comply with the order and only on the 12th of February a notice was taken out for an application for setting aside the abatement so that even after the 26th December, the plaintiffs were guilty of negligence. Sanderson, C. J., said in his judgment: "ignorance of the death of the defendant up to the 22nd December 1920, standing by itself, might be a sufficient cause. But, in my judgment, the death of the defendant having occurred in December 1918, it is clear that if the plaintiffs had shown the smallest diligence in prosecuting the suit in the ordinary way, they must have discovered earlier than December 1920, two years after the death, the fact that the defendant was dead. In my judgment, the plaintiffs have failed to satisfy me that they were prevented by sufficient cause for continuing the suit within the meaning of Order XXII, rule 9." 17. IN the case before Sanderson, C. J., the plaintiff had been guilty of negligence in prosecuting the suit after the defendant's death and even after his knowledge of the defendant's death. IN the case before Sanderson, C. J., the plaintiff had been guilty of negligence in prosecuting the suit after the defendant's death and even after his knowledge of the defendant's death. In the present case, if the plaintiff had been guilty at all of any negligence in prosecuting the suit he might have been so guilty prior to the death of Sitanath. The matter appeared in the Prospective List long before Sitanath died and there is no evidence that the plaintiff was guilty of any negligence or laches after the death of Sitanath in 1962. In an application for setting aside the abatement, the Court is concerned with what transpired after and not before the death occurred. 18. I am, therefore, of the opinion that the case before Sanderson, C. J. is readily distinguishable from this case. Having regard to what I have said, there will be an order for setting aside the abatement and for consequential amendment of the plaint in terms of Clauses (b) (c) (d) and (e) of the Summons. There will also be an order in terms of clauses (a) and (f) of the summons. The plaintiff will pay Sm. Surabala Dassi 30 G. Ms. as her assessed costs of this application. Certified for counsel.