9911796707
TMI Blog1949 (8) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... aim for a declaration as to a right of way and an injunction restraining the defendant from interfering with such right. 3. The suit proceeded, but eventually it became known to the plaintiffs that Sm. Fuleswari Bhadra had died and the solicitors of the plaintiffs wrote to the defendant's solicitors asking them for information as to who were the personal representatives. No satisfactory reply was obtained, and eventually certain records were searched in this Court and it was discovered on August 23, 1948, that the lady had left a will naming Ashutosh Bhadra and Bejoy Kumar Bhadra as executors. They were therefore the proper persons to be substituted in place of the deceased defendant. It appears that the defendant actually died ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion he had to leave within a week, which should suggest that he had left Calcutta before August 23 when the search in the Court disclosed who were the personal representatives of the deceased. It was very rightly pointed out that it is not definitely stated in the affidavit that the male plaintiff was not in Calcutta when the search took place. But I think it can be reasonably inferred from all the facts that he had left early in August for Puri and that he was not here in this city on August 23. 7. The question which has to be determined is whether there is a reasonable explanation for the delay which took place in making this application. In other words, was there sufficient cause for not preferring this application to set aside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given to him by his vakil in the district, by reason of which an appeal was not filed until the period of limitation therefore had expired, is a good ground for the application in favour of the would-be appellant of the provisions of Section 5 of the Indian Limitation Act. In the judgment of Banerji, J. it was observed: Under Section 5 of the Limitation Act, a petition of appeal may be admitted after the expiry of limitation, if sufficient cause is established to the satisfaction of the Court. What constitutes sufficient cause cannot be laid down by hard and fast rules. The sufficient cause must be determined on a reference to circumstances of each case. In my opinion, the expression 'sufficient cause' should be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Now, in making these calculations, I am of opinion that the learned Judge has applied to the case far too exacting a standard and, although the discretion which a Court exercises in connexion with an application under Section 5 of the Limitation Act should not be lightly interfered with, I am of opinion that the delay of 17 or 18 days, under the circumstances aforesaid, is not one that can be considered as unreasonable; or, in other words, I am not satisfied that, in point of fact, there was any want of diligence on the part of the Appellant in preferring the appeal. 12. I am only referring to this case for Mukerji J.'s observation that the standard to be applied should not be too exacting. In the present case I am satisfied t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned Counsel for the petitioner for not making the application within time is that one of the plaintiffs, Jatindra Mohan Seal, went away to Puri in August 1948, after staying in Calcutta for about a week. But it appears that the plaintiffs had their constituted attorney in Calcutta and one of the plaintiffs was in Calcutta. 17. It is also to be observed that in the petition no facts were alleged showing any diligence on the part of the plaintiffs after August 23, 1948. It was for the first time alleged in the affidavit in reply that Jatindra went away to Puri after a week's stay in August and that he returned to Calcutta on October 4, 1948. Even in the affidavit in reply no attempt was made to explain how Jatindra's absen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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