Ram Ranbijaya Prasad Singh vs Madho Turha and Others

Chatterji, J.—This is an appeal against an order refusing to set aside an abatement of an appeal. There were 24 defendants in the suit, all residents of the same village, and they were also the respondents in the lower Appellate Court. Respondent 21 died on 7th May 1937 after notices of the appeal were duly served. On 6th September 1937, respondent 16 filed a petition stating that the appeal abated as respondent 21 died mc than three months ago. On 13th September 1937, the appellant made an application for substitution of respondent 20 in the place of the deceased respondent. On the following day however respondent 18 intimated to the Court that the deceased respondent had left a son and two nephews -who were not on the record. The matter was put up on the next day when the Court recorded an order that the appeal abated. Thereafter, on 1st October 1937, the appellant made an application for setting aside the abatement. The appellant is the Maharaja of Dumraon.

The ground for setting aside the abatement was that the conduct of the appeal was in the hands of his law agent who lived at Arrah for the purpose and he came to know of the death of respondent 21 only when the petition was filed on 6th September 1937 by respondent 16. At the hearing the law agent gave evidence in support of the application. No evidence was adduced on behalf of the respondents. The learned District Judge has held that no sufficient case was made out for setting aside the abatement. He remarks that the deceased respondent being resident of a village where the appellant''s patwari and tahsildar live, it was possible for him, if he was diligent, to keep himself informed of the death of respondent 21.

A preliminary objection is taken to the maintainability of the appeal. It is contended that Order 43, Rule 1(k) which provides for an appeal against an order refusing to set aside an abatement by its terms applies only to suits and not to appeals. However looking to the provisions of Order 22, Rule 11, it is clear that so far as abatement is concerned ''suit will be deemed to include an appeal. The matter is concluded by authorities of this Court. In Wajid Ali v. Fagoo Mandal A.I.R (1938) . Pat. 125 a similar objection was taken but it was overruled. Their Lordships with reference to the provisions of Order 22, Rule 9 and 11 held that an appeal lies against an order refusing to set aside an abatement of an appeal. On the same point there is also the case in Hari Saran Singh v. Saiyid Mohommad Eradat Hussain A.I.R (1925) . Pat. 162. These are Division Bench decisions of this Court and we have to follow them.

On behalf of the appellant Mr. Mullick, relying on the same decisions in Wajid Ali v. Fagoo Mandal AIR (1938) Pat. 125 and Hari Saran Singh v. Saiyid Mohommad Eradat Hussain A.I.R (1925) . Pat. 162, contends that in an appeal after notices have been duly served on the respondents, it is not obligatory on the appellant to keep himself informed about the movements of the respondents. On behalf of the respondents on the other hand reliance is placed on the earlier cases in Mahanth Ramperkash Das v. Kunj Lal A.I.R (1924) . Pat.126 and Phulwati Kumari v. Maheshwari Prasad Singh A.I.R (1924) Pat. 607 which lay down that it is obligatory on an appellant to keep himself informed of any devolution of interest that may take place by reason of the death of any of the respondents; and it is not sufficient for setting aside an abatement merely to say that the appellant had no knowledge of the death of the respondent till many months after such death. To my mind this proposition was too broadly stated. The critical question in deciding whether an abatement should be set aside is whether sufficient cause has been shown and that is a matter for decision on the facts of each case. No hard and fast rule can be laid down as to what constitutes sufficient cause. In this particular case the appeal was in charge of the appellant''s law agent, it is not suggested that he was living in the village or had any touch with the village where the deceased respondent lived. The reason given by the learned District Judge is that the appellant has his patwari and tahsildar in the village and if he had been diligent he might have, known of the death of the deceased respondent. This is hardly fair. There is nothing to suggest that in the ordinary course of business the appellant could have known of the death. Nor is there anything to show that the patwari or tahsildar had any connexion with the appeal. The respondents do not suggest that the appellant''s law agent who was in charge of the appeal had been to their village near about the time when respondent 21 died.

In the circumstances I do not consider that the learned District Judge was justified in rejecting the evidence of the law agent. Accepting his evidence, I would hold that sufficient cause was made out for setting aside the abatement. I would there, fore allow the appeal and set aside the abatement and direct that the appeal be disposed of according to law. The abatement will be set aside on condition of the appellant paying the costs of the lower Court as well of this Court to the contesting respondents: Hearing fee Rs. 4 in the lower Court and two gold mohurs in this Court.

Rowland J.

I agree.