Kondiba Ganoji and Others vs Moti Ram Ganoji and Others

This revision petition is directed against the order of the Munsiff at Nanded dated 1-6-1951, by which he has allowed the Plaintiff''s petition for setting aside the order of abatement and bringing the legal representatives of Defendant 1, Ganoji, on record.

2.The brief facts of the case are that Ganoji is said to have died during the abnormal conditions prevailing before the Police Action and it is alleged that the Razakars murdered him in some jungle. After the Police Action it was found that the files were in pell mell condition. When normal conditions were restored, the Munsiff took the file on hand and issued notices to the parties and their lawyers. The lawyer for Defendant 1 stated that his client is not making any appearance & did not come to him for giving instructions and that he does not know what has happened to him. Afterwards on 18th Amardad 1358F the said lawyer stated that his client died more than 8 months ago. The lawyer for the Plaintiff, enquired into these facts. It is stated before us that it was not possible for the Plaintiff to actually find out and satisfy himself whether the said Defendant is dead. Therefore, on 10th Azur 1359F a petition was presented to the lower Court, stating that Defendant 1 is either dead or cannot be found or traced, and therefore, in view of the statement of the lawyer for the said Defendant, he had put in a petition, making the heirs of the deceased as his legal representatives. A plea of limitation was raised before the lower Court, which was disallowed. Hence this revision petition.

After going through the records of the case, we are satisfied that no ground has been made out for our interference. The lower Court has rightly held that in such a case the provisions of Order 22, Rule 9, Code of Civil Procedure. will be applicable and the petition which was presented long after the expiration of the period of limitation should be treated as one for setting aside the order of abatement. It is clear that in such cases, the provisions of Section 5, Limitation Act will be applicable. In view of the extraordinary circumstances in which Defendant 1 is said to have died, it is clear that the Plaintiff was not expected to know when where and said Defendant died. Under these circumstances, the lower court was right in giving the benefit of Section 5, Limitation Act to the Plaintiff. In Secretary of State v. Vinjamuri Kist Namacharyulu 174 Ind Cas 951 (Mad) it has been held that the ignorance of the death of the Respondent in the absence of negligence or other act of omission, for which the Appellant can be held responsible, would be sufficient cause within the meaning of Section 5, Limitation Act and the delay in applying to set aside the abatement can be excused. We are, therefore, of the opinion that there is no force in this revision petition and we dismiss it. We make no order as to costs, as the Defendant has already agreed to pay Rs. 30/- as fees to the guardian ''add item'' of the minor Respondent.