Mahanth Ramperkash Dass vs Kunj Lall and others

Macpherson, J.—These application (to set aside abatement) are made in second appeals arising out of suits tried together in which the decree bears date the 5th February,1920. The suits were dismissed and the plaintiff''s appeals to the District Judge were also dismissed on the 4th September, 1920. The plaintiff then preferred second appeals to the High Court on the 12th January 1921, and the High Court on the 13th June 1922 remanded the appeals to the lower appellate Court. The District Judge decided the remanded appeals on the 11th September, 1922, though his decree bears date the 31st October, 1922. The present second appeals were preferred by the plaintiff on the 12th December, 1922. When notices were issued from the High Court they were returned with the report that certain respondents were dead, and on the 14th March, 1923, the appellant, alleging that neither he nor his Karpardaz had any knowledge of the death of the respondents at the time of the presentation of the memorandum of appeal and that the karpardaz only learnt of the death about a week before the date of the petition, applied to set aside the abatement and to substitute the legal representative for the deceased respondent in each case. The respondents are stated to have died on the dates shown against their names in the list below:

Appeal.

Respondent.

Date of death.

1439

No. 5

5- 9-22.

1442

No. 5

20- 8-21.

1447

No. 5

7- 9-22.

1452

No. 8

26-10-20.

1454

No. 5

17- 1-2.2.

1459

No. 8

21-10-20.

1466

No. 6

No. 9

5- 2-21.

18- 7-19.

1473

No. 5

17-11-21.

1476

No. 6

18-12-21.

1481

No. 5

24-12-21.

It will thus appear that of the deceased respondents, one in appeal No. 1466 died prior to the decision of the suit, one in No. 1452 and two in 1459 died before the first appeal from appellate decree was presented to the High Court, one each in appeals Nos. 1442, 1454, 1473, 1476 and 1481 died while those appeals were pending in the High Court, and one in each appeal Nos. 1439 and 1447 died while the remanded appeals were still on the file of the District Judge. Accordingly the suit, or the first appeal or the second appeal, as the case may be, abated as against the deceased respondents enumerated, as substitution was not made in their place within the statutory period.

Reliance is, however, placed upon Rule 6 of Chapter VI of the Patna High Court Rules, the only provision of those rules which is applicable. Under that rule whenever after a memorandum of appeal has been presented to the High Court any appellant ascertains that any party mentioned in the memorandum of appeal had died before the appeal was presented, he may apply for an order that the memorandum of appeal be amended by substituting for the person who is dead his legal representatives, if along with his application he files an affidavit showing that the application is made with all reasonable diligence after the fact of the death of such person first came to his knowledge or to the knowledge of his agent if any, acting on his behalf in that litigation.

Rule 6 has been the subject of consideration by this Court in several cases.

In Second Appeal No. 1379 of 1917 it was held that it was not necessary to bring on record the heirs of certain deceased respondents who were dead when the decree was made against them in the lower appellate Court. That, however, was a peculiar case. The suit was one for partition. It was dismissed by the trial Court but decreed in the lower appellate Court. Some of the defendants appealed to the High Court and made respondents certain of their co-defendants who had died before the first appeal was decided in the lower appellate Court. It was in respect of these deceased defendants respondents that it was held that it was not necessary to bring them or their legal representatives on the record in that case as the legal representatives were not bound by the decree obtained in the lower appellate Court. Indeed it was the case of the petitioners for substitution that the decree under appeal, being a nullity against some of the defendants, was for that reason also bad (in a partition suit) against all the defendants including the petitioners themselves. In the present case, which is also a second appeal, the circumstances are different. The appellant in this instance was plaintiff in the suit and appellant in the lower appellate Court. Both suits and appeals having been dismissed, he must in order to get a decree have all the original defendants or their representatives on the record.

In Kamakhya Narayan v. Baijnath Sahay F. A. No. 182 of 1922 the facts were that a defendant Mahadeo Pandey had died several months before the decree under appeal was passed in his favour, but his name was included in the list of respondents named in the memorandum of appeal. An application having been made to set aside the abatement and to substitute the legal representatives of Mahadeo Pandey in his place, it was held that the case came under rule 6 of Chapter VI of the Patna High Court Rules in view of the contents of the affidavit, filed, and the legal representative of Mahadeo Pandey was substituted for him as prayed. That case is not distinguishable from the case of the respondents in second appeals Nos. 1439 and 1447, in, which the death of the deceased respondents took place when the litigation was before the Court from whose decree the appeal before this Court has been preferred, but is distinguishable from a case of the respondents in the other appeals.

Now the affidavit required by rule 6 merely deals with the question of reasonable diligence on the part of the applicant after the fact of death of respondent came to his notice, that is to say, the right to file the affidavit is conditional on proof of reasonable diligence. But when that condition is fulfilled and the application is filed, substitution is only admissible subject to other provisions of the law regarding appeals, such as Order XXII of the CPC and the Limitation Act. Indeed the Allahabad rule, upon which the rule of this Court is based, mentions that the provision is subject to the Law of Limitation. If no question of abatement or limitation arises, the application is sufficient. But if such a question arises, measures must be taken (as the case may be) to have the abatement set aside or to bring the case within S. 5 of the Limitation Act. As to abatement it has been held in numerous cases in this Court that no substitution can be made until the abatement has been set aside on application under Order XXII, rule 9 (2). In order that abatement may be set aside, it has to be proved that the petitioner was prevented by sufficient cause from continuing the suit. On the facts set out above, it is manifest that in no case, except perhaps in second appeals Nos. 1439 and 1447, which will be discussed later, was the appellant "prevented by sufficient cause from continuing the suit."

A person prosecuting a suit or an appeal is bound to keep himself informed of the existence of his adversary. A mere plea of ignorance of the death of an opposite party which took place many months or even years before is not a sufficient ground for setting aside abatement, Mirza Muhammad Askari v. Lalu [1918] 21 O.C. 68 - 45 I.C. 594

Apart from the question whether this Court can set aside an abatement which took place in the trial Court or in the first appellate Court before remand, the appellant must have known that in the ordinary course of human affairs there must have been many deaths during the course of more than four years among the opposite-party in 56 cases and appeals, but he took no steps to acquaint himself with the facts. He has, therefore, made out no case for setting aside any abatement which occurred prior to the order remanding the appeal to the lower appellate Court on the 13th June, 1922.

As regards second appeal No. 1439 the respondent No. 5 died on the 5th September and the respondent No. 5 in second appeal No. 1447, on the 7th September, while the District Judge''s judgment was passed on the 11th September 1922. Notice in these two cases will issue to show case why the abatement should not be set aside and the proposed substitution be made.

The preparation of the remaining cases of the batch need not await the interlocutory proceedings in these two appeals.

Final order [27-6-1923]:-As the record of the leading case of this batch S. A. No. 1427 of 1922 was not put up with the record of these cases, it escaped notice that the question was before us for final disposal. The matter is only of importance in respect of S. A. No. 1439 and No. 1447. The application for setting aside the abatement was only filed on the 14th March, more than six months after the date of death in each case, and the only ground for setting aside the abatement is that the petitioner''s Karperdaz came to know of the death about a week before. There is no definite statement as to the source of information, nor is any reason given why the petitioner or his Karperdaz did not take sufficient interest in the cases to learn of the deaths of respondents. There has been hopeless negligence on the part of the petitioner throughout both before the filing of the second appeal in this Court and after the filing of that appeal. In these circumstances sufficient reason has not been advanced for setting aside the abatement. The application in S. A. No. 1439 and S. A. No. 1447 is also rejected.