Bysani Krishnaiya Chetty vs Dr. Varadachari

Mack, J.—These are applications by the appellant in C. C. C. A. No. 28 of 1947 who was the defendant in a suit in the City Civil Court to

set aside the abatement of his appeal consequent to the death of the plaintiff on 8th May 1948 and to bring on record his legal representatives.

These petitions were filed on 29th September 1948, one month and 22 days beyond the prescribed period of 90 days under Article 177,

Limitation Act. The reason given for the delay is the appellant''s ignorance of the plaintiff''s death.

An important point to be considered in condoning this delay u/s 5, Limitation Act is that the plaintiff filed a memorandum of objections in which

he appeared by the learned advocate who now strenuously contests these petitions on behalf of his legal representatives. No report was made to

the Court about the death of the plaintiff in connection with the cross-objections filed on which the Court was quite entitled to presume that the

appellant was alive so long as the learned advocate who continued to appear for him did not report that he was dead. An adverse party is also

reasonably entitled to make an inference that his adversary who is represented by his learned advocate with a subsisting vakalat is alive unless the

advocate reports to the Court that he is dead. The learned advocate has argued that there is no duty cast on a member of the bar appearing for a

client to report to the Court that he is dead. There is of course no rule of law or procedure enjoining a simple obligation of this kind on a member

of the bar. I have no hesitation in expressing my view that immediately an advocate is informed that a client for whom he appears in a pending

matter is dead, it is his simple duty to report it to the Court, as all Court procedure and posting of cases proceeds on the assumption that

advocates with subsisting vakalats represent living clients. Of course, if the learned advocate is not informed by the legal representatives of his

client, he can make no such report. The point I would emphasize here is that it is not open to an advocate, knowing that his client is dead, to make

no report about it and to wait for the statutory period of 90 days to expire and then come forward on behalf of the legal representatives in

strenuous opposition to a petition to set aside the abatement condoning the delay. The failure of the legal representatives of the defendant to

instruct his advocate about his death--for I assume in this case that the learned advocate had he known of the death of the defendant, would have

made a report to the Court--can be taken into consideration in deciding whether u/s 5 the present petitioner has sufficient cause for not making

these applications in time. I have no hesitation in finding that in the circumstances he had ample and sufficient cause for not applying within the 90

days prescribed.

The two petitions, in the circumstances, are allowed, but without any order as to costs.