JUDGMENT 1. - This second appeal was filed in this Court on July 1, 1974 by Shaukat and nine others and arises out of a suit for possession. Six persons including Nasrudin were made respondents to this appeal. Before the appeal could be taken up for preliminary hearing the counsel for the appellants submitted an application on October 15, 1974 starting that "Suleman respondent" expired on July 17, 1974 and that his legal representatives be brought on record. The office raised on objection that this application could not be entertained as Suleman was not named as a respondent in the memo of appeal. Learned counsel for the appellants was appraised of this objection on October 22, 1974, yet no effective steps were taken for almost one year. It was only on September 30, 1975 that an application was submitted stating that the appellants Jubeda, Bismillah, Gulabnabi, Gafooran and Nasrudin respondent had died during the proceedings in the lower Courts and that while the name of Bismillah was struck off as her legal representatives were already on the record, the legal heirs of the remaining three appellants and Nasruddin respondent were brought on the record, but due to over sight and inadvertence the names of the aforesaid deceased persons were mentioned in the memo of appeal as parties thereto and their legal representatives were erroneously not shown as appellants and respondents in the memo of second appeal. The reason ascribed by the appellants for this obvious mistake was that the judgement and decree sheet of the first appellate court contained the names of the deceased parties and did not contain the names of their legal representatives and that the memo of second appeal was prepared on the basis of the appellate judgement and decree. it was also stated that Suleman, one of the legal representative of Nasruddin died on July 17, 1974 and that his legal heirs should also be brought on the record. 2. it was also stated that Suleman, one of the legal representative of Nasruddin died on July 17, 1974 and that his legal heirs should also be brought on the record. 2. The surviving respondents and the legal representatives of the deceased Nasruddin have appeared on notice of the aforesaid application and contested the same and have contended that Jubeda, Bismillah, Gafooran and Gulabnabi died much before the presentation of the present appeal and the appeal on behalf of the aforesaid four dead persons was not maintainable and similarly the legal representatives of Nasruddin had already been brought on record before the lower appellate court but they were not made parties in the present appeal and that the limitation for filing the appeal having expired long ago, the said legal representatives should not be allowed to be brought on record now. 3. I have heard the learned counsel for the parties. While Mr. Surolia appearing for the appellants contended that the appellants were misled in making the dead persons as parties to the second appeal before this Court on account of the same defect appearing in the judgement and decree sheet drawn up by the court of the Civil Judge, Mehta and that there was no fault of the appellants, as in drafting the memo of second appeal the names of the parties were copied from the judgement and decree of the first appellate court. On the other hand, Mr. N.M. Singhvi, learned counsel for the respondents argued that the appellants were guilty of gross negligence and laches and that although the fact that there was no respondent by the name of Suleman on the record of the appeal was brought to the notice of the leanred counsel for the appellants on October 22, 1974, yet no effective steps were taken by the appellants to bring the proper persons on the record of the appeal till September 30, 1975. According to the learned counsel for the respondents the delay has not been properly explained and the application for bringing on record the proper legal representatives of the deceased appellants and respondent Nasruddin is grossly belated. 4. There is no doubt that the decree and judgement of the first appellate court did not show the proper names of the parties, as the names of the legal representatives of deceased Jubeda, Gulabnabi, Gafooran and Nasruddin were not mentioned in the array of parties. 4. There is no doubt that the decree and judgement of the first appellate court did not show the proper names of the parties, as the names of the legal representatives of deceased Jubeda, Gulabnabi, Gafooran and Nasruddin were not mentioned in the array of parties. Thus there may be sufficient justification for the submission of the learned counsel for the appellants that the initial mistake in mentioning the name of Nasruddin as a respondent in the memo of second appeal, instead of the names of his legal representatives, arose out of the error committed by the first appellate court in not correcting the cause title of the first appeal, in spite of the order passed by it for the substitution of the legal representatives of the deceased respondent Nasruddin. As the same mistake occurred in the judgement and decree sheet prepared by the first appellate court, it can be said that initially the appellants were misled because of the defect in the said judgement and decree sheet. However, the same ground cannot hold good so far as the mistake which was committed in respect of mentioning the names of deceased Jubeda, Gulabnabi, Bismillah and Gafooran as appellants in the memo of second appeal, is concerned. The appellants must have very well known at the time filing the second appeal in this Court as to who were the persons who intended to file the said appeal. As a matter of fact,the Vakalatnama filed along with the memo of second appeal shows that it was signed by the legal representatives of the aforesaid deceased persons Gafooran, Jubeda and Gulabnabi and a little care and attention in the preparation of the memo of second appeal could have led to the bringing of the legal representatives of deceased Gafooran, Jubeda and Gulabonabi on record of the second appeal as appellants. It is noteworthy that Gafooran, Jabeda, Bismillah and Gulabnabi had not signed the Vakalatnama presented with the memo of second appeal in this Court and they could not have signed the same, as the aforesaid persons had expired long before the decision of the first appeal by the learned Civil Judge, Merta. It is noteworthy that Gafooran, Jabeda, Bismillah and Gulabnabi had not signed the Vakalatnama presented with the memo of second appeal in this Court and they could not have signed the same, as the aforesaid persons had expired long before the decision of the first appeal by the learned Civil Judge, Merta. It is surprising to note that in the memo of second appeal the names of deceased Gafooran, Jubeda, Bismillah and Gulabnabi, all of whom did not sign the Vakalatnama accompanying the same, were mentioned as appellants, while the names of their legal representatives, who had signed the said Vakalatnama did not find place in the memo of second appeal. This clearly proves want of care and attention in filing the second appeal in this Court. 5. Even if it be held that there might be some justification for preparing the memo of appeal at the out set on the basis of the judgement and decree sheet of the first appellate court and in not mentioning the names of the legal representatives of deceased appellants Gafooran, Jubeda and Gulabnabi and respondent Nasruddin, therein,yet the question still remains as to whether the conduct of the appellants would justify the exercise of the power of this Court under Section 5 of the Limitation Act in their favour. From a perusal of the record it appears that the fact that there was no person by the name of Suleman as a party to the second appeal was brought to the notice of the learned counsel, for the appellants on October 22, 1974 but then he prayed for three weeks' time to necessary steps in the matter. The counsel for the appellants thereafter prayed for more time and the case was adjourned to various dates on his request until on April 28, 1975 he submitted a so called "reply to the office objection" bringing into light the fact that Nasruddin, one of the defendants, had died during the pendency of the first appeal and his legal heirs were then brought on record and that Suleman was one of them. However, no steps were taken even thereafter for a long time to amend the memo of appeal and bring proper persons in the array of parties, although the learned counsel for the appellants sought several adjournments during that period. However, no steps were taken even thereafter for a long time to amend the memo of appeal and bring proper persons in the array of parties, although the learned counsel for the appellants sought several adjournments during that period. An application was filed on July 31, 1975 praying for amendment of the cause title of the appeal by addition and deletion of the names of various persons, both appellants and respondents, in the memo of appeal. When the case came up for orders on this application before the Court on August 4, 1975 learned counsel probably realised that the said application was apparently insufficient and so the same was not pressed and the learned counsel for the appellants again prayed for two weeks' further time to make a proper application to show that the mistake committed in filing the appeal was bonafide. However, nothing was done within the said period of two weeks. 6. Thus it is apparent that it was brought to the notice of the learned counsel for the appellants on October 22, 1974 that the cause title of the appeal was defective and the name of Nasruddin was not included therein yet no steps were taken for a considerably long time to make a proper application. Even the application submitted on July 31, 1975 was not proper as it gave no explanation at all for the delay which had occurred in making such an application and the learned counsel for the appellants, realising this infirmity apparently did not press the said application and again prayed for two weeks time on August 4, 1975 to make a proper application. Even thereafter some adjournments were taken and only on September 30, 1975 a proper application was submitted. The delay from the time the appellants were made aware of the fact that the memo of second appeal was defective in respect of the array of parties there in to the time that a proper application was made is considerable and inordinate and adequate explanation should have been furnished at to why it was not possible to make a proper application in this respect earlier. 7. Learned counsel for the appellants relied upon a decision of this Court in Girwar Lal v. Jagroop and others, ILR (1958) 8 Raj 848 in support of his contention. 7. Learned counsel for the appellants relied upon a decision of this Court in Girwar Lal v. Jagroop and others, ILR (1958) 8 Raj 848 in support of his contention. In the aforesaid case it was held that in such circumstances a party can make a request to the Court for giving the benefit of the provisions of Section 5 of the Limitation Act for bringing on record the legal representatives of a deceased party, who were already brought on record in the lower Court. 8. I have no doubt that the provisions of Section 5 of the Limitation Act are applicable in such cases where the mistake has been committed in preparing the memo of appeal partly on account of similar mistake occurring in the certified copies of the judgement and decree sheet of the lower court, but then the appellants were required to show sufficient cause for not making an application for bringing proper legal representatives of the deceased parties on the record earlier. However, it is apparent from the record that in the present case, the delay in making such apparent from the record that in the present case, the delay in making such application for bringing the proper parties before the Court, was caused mainly on account of the in action and negligence of the appellants. It may be noteworthy to mention here that four out of the parties who had died during the course of the proceedings before the lower court were appellants and the remaining appellants were fully aware of their death and the names of their legal representatives and nothing could have prevented them from bringing the said legal representatives of the deceased appellants, Gafooran, Jubeda and Gulabnabi on record as soon as it was brought to their notice on October 22, 1974 that the array of parties in the memo of second appeal was defective, if not even at the time of filing the second appeal in this Court. Adequate explanation should have been given by the appellants as to why it was not possible for them to make a proper application under Section 5 of the Limitation Act before September 30, 1975. 9. Learned counsel for the appellants also relied upon two other cases of this court. Adequate explanation should have been given by the appellants as to why it was not possible for them to make a proper application under Section 5 of the Limitation Act before September 30, 1975. 9. Learned counsel for the appellants also relied upon two other cases of this court. In Maharam v. Jaidayal Civil Second Appeal No. 100 of 1969, dated December 20, 1971 the learned Judge felt satisfied that there was sufficient cause for not beginning the legal representatives on record earlier and the application was allowed. There is no detailed discussion in the order dated December 20, 1971 of the reasons which led to the satisfaction of the Court in that case and as such the said order does not provide any guidance in the matter. 10. In Civil Second Appeal No. 502 of 1967, Nawal Kishore v. Jagannath , the application under Section 5 of the Limitation Act was submitted promptly, on the very next day after the mistake was brought to the notice of the counsel for the appellant in that case and in these circumstances it was held that there was a bonafide mistake in not impleading the legal representatives of the deceased respondent earlier. 11. In Civil Second Appeal No. 498 of 1965, Ramdeo v. Pyarey Lal decided on March 29, 1968 after a detailed consideration of the circumstances, Hon'ble Shinghal J. held that there was no adequate explanation for the delay which had occurred in making the application, after the mistake in the array of parties in the memo of appeal was discovered and that the defect in not bringing the names of proper parties in the memo of second appeal within reasonable time gave rise to a valuable right in favour of the respondents by lapse to time. 12. I have carefully gone through the application dated September 30, 1975 and I find that except stating that the mistake in mentioning the names of parties in the memo of second appeal had occurred because of the fact that the judgement and decree sheet of the first appellate court were defective in that respect, no further explanation has been given for the delay of almost one year, which was caused in making a proper application in this respect. Learned counsel for the appellants strongly relied upon an affidavit dated July 26, 1975 filed by Farid, one of the appellants, in support of his contention that the delay in bringing the proper parties before the Court was bonafide. But in that affidavit also the entire blame has been thrown on the first appellate court. It has also been stated that a copy of the plaint was applied for on April 21, 1975 which was supplied on April 22, 1975, but the appellant Farid thereafter fell ill and he could reach Jodhpur only on July 25, 1975. It has not been explained as to why a certified copy of the plaint was applied for so late as in April, 1975 nor any details, regarding the alleged illness of Farid appellant have been disclosed, as to when he fell ill and when he recovered and what was the nature of his supposed illness. Moreover, there were other surviving appellants besides Farid who could have taken proper proceedings earlier. The affidavit of Farid thus does not inspire confidence. Moreover, no explanation at all has been furnished for the delay from August 4, 1975 to September 29, 1975. Having considered all the facts and circumstances of the case, in my view, the delay from October 22, 1974 to September 29, 1975 has not been properly explained and the ground, which led initially to the committing of a mistake in framing the memo of second appeal, could not be stretched further even after it was brought to the notice of the appellants' learned counsel that the memo of appeal was defective in respect of the array of parties. There is no satisfactory explanation for the inordinate long delay which has occurred in this respect and the various order sheets show that the appellants were grossly negligent in the conduct of the appeal, in so far as making a proper application for bringing proper persons on the record of second appeal as parties thereto. 13. It, thus, appears that the circumstances of the present case are similar to that in Ramdeo's case (supra) and the appellants appear to have proceeded in a careless and negligent manner, as they did not care to file a proper application within a reasonable time even after they came to know that the memo of second appeal was defective in respect of the names of parties. It is surprising that four dead persons were shown as appellants in the memo of second appeal filed in this Court. As no reasonable explanation has been furnished for the delay in making a proper application even after the discovery of the fact that the memo of appeal was defective in respect of the array of parties, this Court is unable to exercise its powers under Section 5 of the Limitation Act. 14. In view of the aforesaid discussion, I hold that the application dated September 30, 1975 is grossly belated as it was filed after inordinate and long unexplained delay and the same is, therefore, rejected. The names of Gafooran, Jubeda, Gulabnabi and Bismillah appellants and Nasruddin respondent should be struck off from the record of his appeal, as all of them died during the pendency of the proceedings before the lower courts. Moreover, as the legal representatives of deceased Gafooran, Jubeda, Gulabnabi and Nasruddin, who were brought on record as parties to the first appeal before the lower court, have not been made parties to the present second appeal, this appeal is not properly constituted and as such it is not maintainable in the absence of some of the appellants and respondents, who were present before the first appellate court. In these circumstances, this Court has no alternative but to dismiss the appeal. However, the parties are left to bear their own costs in this Court. *******