Allahabad High Court
Lachmi Narain vs Muhammad Yusuf And Ors. on 21 April, 1920
Equivalent citations: 59IND. CAS.903
JUDGMENT Walsh, J.
1. This is an application in form to bring on record the names of two persons, Gomti Prasad and Kauleshar Prasad, collateral relatives of the deceased appellant, Lachmi Narain. Lachmi Narain died on the 2nd July 1919 and the time for substitution of names, namely, six months, therefore, expired on the 2nd of January 1920. An application was made to this Court, ex parte, on the 5th of February, a month and three days beyond time. The learned Judge, who happened to be myself, issued notice to the ether side to show cause why in spite of the expiration of time, leave should not be given. Mr. M.L. Agarwala for the plaintiff appears to show cause, and he has raised certain objections which it is necessary for me to deal with, In the first place he says that there is no order of abatement, and that the application is one to bring certain names on the record and not to set aside any order of abatement. I agree that that is an accurate description of the technical position but for some reason or another, which I have never been able to understand, we have no system in this Court by which, if an appeal abates or is dismissed automatically for breach of some condition precedent, or for failure to comply with some order such as giving security for costs, an order is automatically drawn up in the ministerial side of the office recording that the appeal stands dismissed or abated, as the case may be. What happens if, that it is put up amidst a lot of other applications of a similar kind before an unfortunate Judge who has to deal with them with some rapidity in the half hour allowed for petitions and the usual order is made, namely, "put up in the ordinary course". I have in my experience known of more than one such case which has been put up in the ordinary course because it was found that the appeal had abated, and afterwards an adjudication in Court took place, whereas in fact, the appeal abates automatically on the expiration of six months The absence of any formal order by this Court carrying the abatement into effect, cannot serve as an obstacle to any body who wants to put himself right, or to correct some bona fide mistake which has occurred. Therefore, I agree with Mr. Durga Prasad for the applicant that in substance this is an application to set aside the abatement under Order XXII, Rule 9 and to allow the names to be substituted and the appeal to proceed, in spite of the fact that the six months have expired and the right of appeal abated automatically by law. I hold that I have the right to consider this matter and to decide whether, in my opinion, the applicant was prevented by any sufficient cause from continuing the appeal, and, if I am satisfied on that ground, to set aside the abatement and allow the appeal to be continued on such terms as I think right, Order XXII, Rule 9, is made to apply to appeals by Rule 11.
2. Then, Mr. Agarwala says that the circumstances of the case do not bring the application within Section 5 of the Limitation Act. Without deciding whether they do or whether they do not, I think I have a duty, under Rule 9, Sub-rule (2), to decide whether there was sufficient cause independently altogether of Sub-rule (3). Sub Rule (3) merely provides that the pro visions of Section "5 of the Limitation Act shall apply to such applications, so that if the case is one clearly within Section 5 of the Limitation Act the Court may rule that that is sufficient cause. But I do not think that that provision confines the sufficient cause mentioned in Sub-rule (2) to the circumstances given in Section 5 of the Limitation Act.
3. Thirdly, Mr. Agarwala objects that there is a serious question as to whether the persons applying before me are or are not the legal representatives of the deceased appellant. He says that Musammat Sitabo has an interest. There is an affidavit by her before me to the effect that she disclaims any interest and support this application. Mr. Agarwala asks me to refer that question so that it may be determined by the Court. I propose to do that but I refer that question with the affidavits relating to it to the decision of the Court hearing this appeal. In this case the evidence before me, which I believe, goes to show that one of the applicants was ill for a very long time and unable to attend to this matter. The affidavit is not very specific on the point. On the contrary, it does not say when and for how long, nor does it say when the applicant first heard of the pendency of this appeal. But I think I can remove any possible injustice to anybody by making it part of the terms on which I allow this application that the applicant shall deposit in cash in this Court the sum of Rs. 60, being the amount of costs incurred in the lower Appellate Court, as security for the costs of this appeal. If this is done within a month, I extend the time for bringing the names of Gomti Prasad and Kauleshwar Prasad on the record to that date whenever it may be, that is to say, to the date of the deposit of the security within a month from to-day. If they fail to do it within a month, this application will stand dismissed. Costs of this application will be costs in the appeal.