Saiyed Hashmat Ali v. Ram Autar, Etc.

B.K Misra, M.:— In this second appeal, Chhotey Lal respondent, is dead. The question to be decided is whether this appeal has abated under Order XXII, Rule 4(3) of the Code of Civil Procedure.

2. Chhotey Lal died on August 20, 1971. On January 31, 1972, an application was moved on behalf of the appellants with an affidavit alleging that the appellant came to know from-the report of the Process Server that Chhotey Lal had died at Naini, district Allahabad. This affidavit was controverted by Ram Autar, respondent, who moved an application that the appeal be abated and the application for substitution be dismissed. In his affidavit, Ram Autar stated that Chhotey Lal died in his house in Rajapur which is at a distance of two houses from that of the appellant and that the appellant had full knowledge of the death of respondent Chhotey Lal from the date of his death. In the rejoinder-affidavit dated February 13, 1973, it was alleged that Chhotey Lal died in the T.B Sapru Hospital and a certificate is attached to this effect.

3. The question for consideration is whether the appellant had knowledge and whether he sholld be given the benefit of Section 5 of the Indian Limitation Act and the delay in moving the application for substitution be condoned. It is established from the certificate issued by the Hospital that Chhotey Lal died on Aug. 20, 1971. It has not been established that Chhotey Lal did not live at his house in Rajapur.

4. he fact that he was working at Naini in Octroi Department of Nagar Mahapalika may be considered as evidence that he had to stay there for some time but in the event of his death he would naturally be brought to his home i.e in Rajapur. It is established that the appellant has a house near the house of Chhotey Lal in Rajapur. Consequently, it is not possible to accept the statement that he came to know of Chhotey Lal's death from the report of the process server.

5. As regards the benefit of Section. 3 of, the Indian Limitation Act, before any such prayer can be considered we have to go into the fact whether the appellant had sufficient cause. In the case of Union of India v. Ram Charan A.I.R 1964 S.C 215 their Lordships have held that there is no question of construing the expression “sufficient Cause” liberally. An appellant prosecuting his appeal diligently cannot be deemed to have sufficient cause when the respondent who lives near him dies. The presumption is that his last rites must have been performed and people in locality would have known of it. Secondly, sufficiency of cause is not enough. The delay of each day has to be explained. In this case, I find that it is impossible to accept the contention of the appellant that he did not have knowledge of Chhotey Lai's death at any time prior to the report of the process server.

6. The application for substitution is rejected and the appeal has abated under the provisions of Order XXII 4(3) of the Code of Civil Procedure.