9911796707
TMI Blog1975 (9) TMI 189X X X X Extracts X X X X X X X X Extracts X X X X ..... Jayanta Mitra, Counsel for the petitioner, has submitted that the materials placed before this Court as disclosed in the petition, affidavit-inopposition and affidavit-in-reply establish that there is sufficient cause which has prevented his client for not making the application within the prescribed period of limitation. Relying upon Union of India v. Ram Charan, he has submitted that the tests laid down in the said decision would clearly show that there has been no culpable negligence on the part of his client to make the present application and, as such, the delay in making this application has been caused on reasonable grounds and that such delay should be condoned under Section 5 of the Limitation Act. ( 3. ) Mr . Dipankar Ghosh, counsel for the heirs of the deceased respondent, relying upon the same Supreme Court decision, has submitted that no sufficient cause has been shown by the petitioner which has prevented the latter from presenting this application within the prescribed period of limitation. He has laid emphasis on the fact that the appellants' mere absence of knowledge of the death of the respondent cannot be considered as sufficient cause within the mea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant was prevented from making the application for sufficient cause. The Court cannot have sympathy for a party who has been absolutely careless and negligent in not taking steps to find out the death of the respondent In the said decision the respondent died on July 21, 1957. The appellant came to know about his death on February 3, 1958 and the application for setting aside the abatement and condonation of the delay was made on March 18, 1958. Even the statements made in the petition have not been based on personal knowledge by the petitioner and no explanation for the delay was offered. The Supreme Court has found on those facts that no sufficient cause was shown which prevented the appellant there to make the application before March 18, 1958 although the appellant had knowledge of the death of the respondent on February 3, 1958. Further, in the said application there was no specific prayer also for setting aside the abatement Under those circumstances, the Supreme Court did not set aside the abatement of the appeal. In the said decision, however, Raghubar Dayal, J. has made the following observations at page 219: The provisions of the Code are with the view to adva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ful purpose to refer to the cases relied on for the appellant in support of its contention that the appellant's ignorance of the death of the respondent is sufficient cause for allowing this application for the setting aside of the abatement and that in any case it would be sufficient cause if its ignorance had not been due to culpable negligence or mala fides... It is true, as contended, that 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. But it does not mean that mere fact of the appellant coming to know of the respondent's death belatedly, by itself, will justify his application for setting aside the abatement. That is not the law. ( 5. ) The principles of law laid down in the said Supreme Court decision clearly indicate that the Court has a discretion in the matter if the Court is satisfied that there are materials before it which do not disclose culpable negligence or mala fides. In the present case although we are not happy with the materials placed in the petition as drafted, we are satisfied that there is sufficient cause which prevented the petitioner from presenting this ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssuming that the death of Murari Churn Law was published in the daily news-paper it is not possible for the law Officers of the petitioner to know that Murari Churn Law was a respondent in a pending appeal in this High Court nor can there be a constructive knowledge of the petitioner about the death of the respondent on the ground that the respondent was cremated in the Corporation Burning Ghat. It cannot be expected of a body like Corporation of Calcutta to keep itself informed about the defendants or respondents in the various proceedings pending in different Courts or that steps should be taken for substitution of the heirs of any of the parties in such proceedings on the basis of the newspaper report about the death. Of course the matter would be otherwise if there is any negligence on the part of the Corporation. It has not been established either that the petitioner or its Law Officers had any knowledge of the death of Murari Churn Law at any time before May 20, 1974, and that the former were negligent in making this application. Even assuming there is negligence on the part of the petitioner's solicitor in not keeping its client informed about the physical condition of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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