The respondent died on the 24th August, 1977. The appellant says he was ignorant of the respondent's death. Consequently, the appeal abated because the appellant did not make an application within 90 days to join the legal representatives of the deceased respondent. The ignorance of the appellant of the death of the respondent continued thereafter and no application was made by him for setting aside the abatement of the appeal within the prescribed period of 60 days. On the 24th Feb. 1978 the appellant made two applications, CMs. 183 and 184 of 1978; the first for bringing the legal representatives of the deceased respondent on record and second setting aside the abatement of the appeal on the ground that the appellant was ignorant of the death of the deceased-respondent and this constituted sufficient cause for the delay in making these applications.
2. The relevant provision to be construed in considering these applications is O. XXII R. 4(5), as amended in 1976, which is as follows :—
“(5) Where -
(a) the plaintiff was ignorant of the death of a defendant, and could not, for that reason, make an application for the substitution of the legal representative of the defendant under this rule within the period specified in the Limitation Act, 1963 (36 of 1963), and the suit has, in consequence, abated, and
(b) the plaintiff applies after the expiry of the period specified there-for in the Limitation Act, 1963 (36 of 1963), for setting aside the abatement and also for the admission of that application under Section 5 of that Act on the ground that he had, by reason of such ignorance, sufficient cause for not making the application within the period specified in the said Act.
the Court shall, in considering the application under the said S. 5, have due regard to the fact of such ignorance, if proved.”
3. Two questions have to be considered, namely, (1) a question of fact, as to whether the appellant was in fact ignorant of the death of the respondent, and (2) a question of law, whether this constituted sufficient cause for the delay in making these applications in the eye of law.
4. Question 1 :—
Both the parties have filed affidavits in support of their contentions and argued their respective positions seeking our decision on this question of fact. The pleadings of the parties shed the following light on this question :
(1) It was the initiative taken by the legal representatives of the respondent which brought the fact of the death of the respondent to the notice of the court and, therefore, to the notice of the appellant.
(2) C.M 181 of 1978 filed by the legal representatives of the respondent on 21-2-1978 sets out at length the circumstances showing that the death of the respondent must have been known to the appellant. These are (a) that the business premises of the two parties adjoin each other; (b) that the respondent was a prominent person in the locality being engaged in transport business under the name and style of a company for a long time; (c) that the appellant actually joined the funeral of the deceased-respondent, and (d) that the only road from the house of the deceased-respondent to the place of the cremation was the one on which the business premises of the parties were situated. The appellant could not have, therefore, missed seeing the funeral procession which passed the business premises at 11 A.M
(3) In spite of these detailed pleadings, the appellant in C.M Nos. 183 and 184 of 1978 did not deny that the business premises of the parties adjoin each other and that the deceased respondent was a prominent person. He only denied that he joined the funeral procession of the deceased respondent.
(4) Later the legal representatives of the respondent also filed documents showing that printed cards were distributed to friends and relations inviting them for the ceremonies performed after the death of the respondent and an obituary notice was also published in an Urdu paper. The appellant simply denied knowledge of both saying that he did not read newspapers as he was very little educated.
(5) The explanation of the appellant how he came to know of the death of the respondent is self contradictory. The affidavit filed by the appellant in support of C.M 184 of 1978 says that the appellant received a message on 22-2-1978 from his counsel through Charanjit Singh to the effect that a copy of an application made by the legal representatives of the respondent had been received by the appellant's counsel showing that the respondent had died and that it was necessary for the appellant to meet his advocate soon. But the affidavit of Charanjit Singh is that the only message conveyed through him by the advocate of the appellant to the appellant was that the appellant should see his advocate in a very urgent matter. It would appear, therefore, that even on such a vital and limited question of fact the appellant has not been truthful in his pleading.
5. In view of the contradiction between the affidavit of the appellant and that of Charanjit Singh, we are of the view that the appellant is not telling the truth. Further, the circumstances are overwhelming against the case of the appellant. It is simply unbelievable that the appellant did not know the death of the respondent when the business premises of the parties adjoined each other, cards were distributed and obituary notice was published in the newspapers inviting friends and relations to attend the ceremonies after the death, the funeral procession at 11 A.M passed by the business premises of the appellant and the likelihood that the appellant might have joined the funeral procession. After all, death brings even the bitterest enmity to an end. It is also courtesy that after the death of an enemy, one may join his funeral procession to bury the past enmities. We, therefore, find as a fact that the appellant knew of the respondent's death. The appeal, therefore, abated because no application was made within 90 days to substitute the legal representatives in place of the deceased respondent in the appeal.
6. Question 2 :—
Assuming that the findings on the question of fact were that the appellant did not know of the death of the respondent, the question to be considered is whether such ignorance of the death of the respondent was sufficient cause for the condonation of the delay in making the applications. In Union of India v. Ram Charan, AIR 1964 SC 215, the following propositions were laid down.-
(1) On the one hand, it is not the duty of the appellant to make regular enquiries from time to time about the health or existence of the opposite party.
(2) On the other hand, the mere fact that the appellant came to know of the respondent's death belatedly will by itself not justify his application for setting aside the abatement.
(3) The middle position that emerges in para 12 of the judgement is that the applicant had to allege and establish fact which, in the view of the Court, would be sufficient reason far his not making the application for bringing on record the legal representatives of the deceased within time. If no such facts are alleged none can be established and in that case the Court cannot set aside the abatement. In para 13 it is stated that the applicant must allege why he did not know the death of the respondent earlier or why he could not know it earlier despite his efforts. His mere allegation that he was ignorant of the death of the respondent cannot be regarded as a sufficient cause. The correctness of the reasons given by the applicant can be challenged by the other party.
7. These observations were intended to keep a balance of justice between the parties. On the hand, the Court was anxious that the main case should be decided on merits and should not go off tangent by a side wind as it were due to abatement. After all a party cannot have any interest in getting his own suit abated by not making an application for the substitution of the legal representatives of the opposite party within time. The provision for such substitution is somewhat technical and though it is necessary to secure the interests of the legal representatives, delay on the part of the plaintiff or appellant should not result in the demise of the main claim without decision on merits. On the other hand, it must also be recognised that in every case it would be open to a party who is guilty of delay due to negligence that there was no reason for him to be negligent as he could not have allowed his main claim to be defeated by his failure to apply for substitution of the legal representatives of the deceased respondent. Accepting such an argument would mean that in every case the Court must believe whatever explanation is given for the delay. But the anxiety of the Court not to allow the merits of the case to suffer due to abatement does not allow it to ignore the obligation of the plaintiff or the appellant to be diligent. The law of limitation itself acts as a hardship but nevertheless it is implemented by the Courts because diligence on the part of the parties to litigation has to be enforced by it.
8. The truth is that while a party would not deliberately delay in taking steps to bring the legal representatives of the deceased opposite party on record often he is not fully aware of the consequences of the delay on his part. He does not realise the importance of diligence. It is often thought that all of us in our life delay in taking action or decision and suffer by such delay. Merely because we have no interest in delaying actions favourable to us does not mean that we are never guilty of such delay, for the same reason, plaintiffs and appellants who are guilty of delay even without being interested in being negligent have to suffer for the consequences of their negligence.
9. In the Fifty-fourth Report of the Law Commission on the Civil P.C 1908 made in Feb. 1973 the question of O. XXII R. 4 and the ignorance of death was considered at pages 194-195. The Commission observed that the question whether the ignorance on the part of the party of the death of other party should be sufficient cause for the condonation of delay in the substitution of legal representatives of the deceased has arisen in several cases in relation to the power of the Court to excuse the delay under S. 5 of the Limitation Act. The Commission also noted that how “far ignorance of the death of the party concerned is a sufficient ground would depend on the facts of each case” (Union of India v. Ram Charan, AIR 1964 SC 215 at p. 220). The Commission then observed as follows :—
“It was for the last-mentioned reason that the earlier Commission, in its Report on the Code, after discussing the position as above, considered it unnecessary to make an express provision as to “ignorance of death as a sufficient ground. At one stage we were inclined to think of a solution whereunder due regard could be had to the fact of ignorance of death, while considering an application under S. 5, Limitation Act, for condonation of delay in respect of an application for setting aside the abatement. This could be achieved by the insertion of the following sub-rule in O. 22, R. 4 where-
(a) the plaintiff was ignorant of the death of a defendant and, could not, for that reason, make application for substitution of the legal representative under this rule within the prescribed period as provided in the Limitation Act, 1963;
(b) the suit has, in consequences, abated; and
(c) the plaintiff applies for setting aside the abatement and also for admission of that application after the prescribed period under s. 5 of that act on the ground that he had, by reason of such ignorance sufficient cause for not making the application within such period;
the Court shall, in considering the application under the said Section, have due regard to the fact of such ignorance, if proved.”
10. The amendment of the Civil P.C in 1976 reproduces the recommendation by the Law Commission verbatim by adding sub-rule (5)(b) to R. 4 of O. 22. It would appear that, on the one hand, the amendment has confirmed the view of the Supreme Court in Ram Charan's case that the question whether the ignorance of death would constitute sufficient cause would depend on the facts of each case. That is to say, it is the circumstances of the case which would make the Court to believe or disbelieve that such ignorance was really the cause of the delay. It is not, therefore, a proposition of law that ignorance of death must always be the cause for the delay. On the other hand, it is a question of fact whether in a particular case it really explained the delay. It would also appear that the following observation of the Supreme Court in para 9 of Ram Charan's case, namely, “but it does not mean that the mere fact of the appellant's coming to know of the respondent's death belatedly will, by itself, justify his application for setting aside the abatement; that is not the law” could create a doubt as to whether the ignorance of the death of a party would at all be sufficient cause for the condonation of the delay. With a view to remove such a doubt it has now been enacted by amendment that the Court shall have due regard to the fact of such ignorance, if proved, in considering the application for the condonation of delay. That is to say, the ignorance of the death, if proved, will have to be considered by the Court and if the Court is of the view that it has contributed to the delay, then the Court would be justified in accepting it as sufficient cause for the condonation of the delay.
11. The second question, namely, the question of law does not arise in the present case because of our finding on the first question, namely, the question of fact that the appellant knew of the death of the respondent and yet was negligent in making the application.
12. Applications C.M Nos. 183 and 184 of 1978 are, therefore, both dismissed as being barred by time. The result is that the appeal itself abates and is dismissed as having abated. No order as to costs.
Appeal dismissed.