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1991 DIGILAW 14 (ALL)

Keshav Prasad v. Dhannoo

1991-01-03

A.U.KHAN

body1991
JUDGMENT A.U. Khan, Member. - A suit under Section 229-B Z.A. & L.R. Act was instituted by Keshav Prasad and others. This was decreed on 15-7-1965. Aggrieved by this decree, defendant Dhanno lodged an appeal in Commissioners Court. This appeal No. is 329/454 of 1965. Additional Commissioner by his order 12-3-1974 has allowed the appeal, set aside the order and decree dated 15 7-1965. The suit of plaintiffs was dismissed. 2. Plaintiffs have carried this second appeal in this Court. 3. Appeal instituted on 29-8-1974. In taking its own considerable time of years for attention and final disposal a few contestants have died. Appellant Keshav Prasad died on 29-11-1985, he has been substituted by his two sons. Appellant Ram Kishore also died. He has also been substituted by his son. On the respondents side Panna died and has been substituted. Three substitution applications have been allowed. 4. Respondent No. 3 Jawahar died on 21-6-1977. His substitution application moved by Ranjeet Singh on 23-3-1987, a delay of 10 years. 5. Heard the counsel for the parties on this and perused the record. 6. Appellant Ranjeet Singh in his affidavit has stated that appellant Keshav Prasad and Ram Kishore were doing Pairvi in the appeal. That they have died and their heirs have been substituted. He has set forth the case that he had no knowledge about the pendency of the second appeal "that he is an illiterate person not conversant with legal procedure and the law of substitution", he was also ignorant about the litigation pending between his father and the respondents. 7. The above reasons for condonation of delay is opposed by Dhanno, Respondent No. 1. He states that heirs of appellant Keshav Prasad are literate, were aware of the pending appeal. It is said that application is moved with considerable delay and appeal should be dismissed as abated. 8. It seems that substituted appellants had knowledge of the second appeal pending in this Court. Appellant Keshav Prasad died on 29-11-1985. The substitution application by his sons and heirs moved on 2-12-1986. At least on this date they had knowledge that second appeal is sub-judice in this Court. Appellant Ram Kishore died on 18-12-1985. His substitution moved by his heirs on 2-12-1986. Therefore, his son Ram Ranjan Singh also knew about the pendency of this appeal on 2-12-1986. The substitution application by his sons and heirs moved on 2-12-1986. At least on this date they had knowledge that second appeal is sub-judice in this Court. Appellant Ram Kishore died on 18-12-1985. His substitution moved by his heirs on 2-12-1986. Therefore, his son Ram Ranjan Singh also knew about the pendency of this appeal on 2-12-1986. The substituted appellants did not move for substitution in place of Jawahar till 23-7-1987. No reasonable explanation of each days delay has been attempted, muchless satisfactorily explained for the period from 2-12-1986 to 23-3-1987. This delay is of about 108 days. 9. When appellant Keshav Prasad and Ram Kishore were alive till 1985 when respondent Jawahar was dead 8 years age. For 8 years appellant Keshav Prasad did not flick their figures to bring the legal representative of Jawahar on record. Appellants Keshav Prasad can hardly raise the point that they had no knowledge of the appeal instituted by them in 1974. Their carelessness and negligence of 8 years is patent to be seen. The delay of 108 days by substituted heirs Ranjeet Singhs lurks to the eye. What bulks large is utter negligence and sheer carelessness. AIR 1981 SC 1921 has deprecated the condonation of delay when no real good case is made out. Village communities are compact units and respondent Jawahar lived at a near distance of 3 miles. It is almost sure that two appellants and then three substituted appellants must have knowledge of the death of Jawahar soon enough. It is the duty of appellants to show sufficient reason for getting the knowledge of date of death with delay : AIR 1964 SC 215 . They have not discharged this duty at all. It is settled that in setting aside abatement and when Section 5 Limitation Act is invoked each days delay since the end of 150 days from death shall have to be explained. Want of diligence on the part of appellants to substitute after factum of death came to his notice is fatal : AIR 1978 Calcutta 516. 10. When period of limitation has expired each days delay has to be explained. In 1985 RJ 47 (HC) no explanation was given for the period, from December 1979 to 5-3-1980. In the case here the delay is of nearly 10 years. 10. When period of limitation has expired each days delay has to be explained. In 1985 RJ 47 (HC) no explanation was given for the period, from December 1979 to 5-3-1980. In the case here the delay is of nearly 10 years. In 1986 RJ 217 (HC) the ground for condonation of delay was that party had no knowledge of death of respondent. Application for substitution of legal heirs was rejected. In 1982 RD 8 application under Section 5 limitation was moved. It was held that lack of knowledge of the appeal may be taken to be a sufficient ground for condonation of delay where the heirs is either minor or an illiterate and uneducated widow but it is not a sufficient ground when the heirs are major sons. In 1984 RR 153 it has been clarified that benefit of Section 5 of the Limitation Act is not available on the ground of ignorance of law. Such carelessness is the recumbent fort which Wordsworth once remarked in an old man of his acquaintance. He is unvariably subdued. To settled quiet, he is one by whom all efforts seems forgotten. 11. On a consideration of all, this much is clear, respondent Jawahar died on 21-6-1977. Substitution application moved on 23-3-1987, there has been delay to 9 years 9 months. This delay has not been satisfactorily explained. In this view substitution application is rejected. In consequence thereof the abatement that has taken place cannot be set aside. 12. Appeal is dismissed as having abated.