ivil Appeal No 1115 of 1962
Appeals by special leave from the judgments and orders dated February 1626 1960 of the Punjab High Court in Civil Misc
No 1212 C of 1959 and Regular First Appeal No 44 of 1955
DR Prem and PD Menon for the appellant
469 Veda Vyasa K K Jain for PC Khanna for respondent
April 30
The judgment of the Court was delivered by RAGHUBAR DAYAL J
The facts leading to this appeal by special leave against the orders of the high Court of Punjab are these
Ram Charan obtained a decree for money against the Unioun of India on January 6 1955
The Union of India presented an appeal on April 6 1955 in the High Court
Ram Charan the sole respondent filed a cross objection on July 31 1955
On February 6 1956 the High Court passed an order in connection with the surety bond
Ram Charan was represented at the proceedings
Ram Charan died on July 91 1957
On March 18 1958 an application was presented to the High Court on behalf of the appellant under O XXII r 4 read with section 151 Code of Civil Procedure stating that Ram Charan died on July 21 1937 that the Divisional Engineer Telegraphs Ambala Cantonment learnt of his death on February 3 1958 and that the deceased had left as his legal representatives an adopted son and a widow
It was prayed that these legal representatives be brought on record in the place of the deceased respondent
The affidavit filed in support of this application did not convey any further information and it was solemnly affirmed by the dependent that the averments in the affidavit were true to his belief The deponent was no other than the Divisional Engineer Telegraphs Ambala Cantonment
On May 13 1958 the widow of Ram Charan applied that she alone was the legal representative of Ram Charan under a will and that the alleged adopted son was not the legal representative
The appellant s application for bringing on record the 470 legal representatives of the deceased Ram Charan came up for hearing on May 14 1958
The Court ordered the application to be heard at the time of the hearing of the appeal as it was pointed out that there was a difference of opinion in the Court as to whether limitation under 0
XXII of the Code started from the date of death or from the date of knowledge of death
Subsequently on an application on behalf of the legal representatives it was ordered that the question of abatement be decided first and thereafter the printing of the record be taken on hand
The application for substitution came up for decision on February 16 1960
It was dismissed the Court holding that the Union of India had failed to show that it was prevented from any sufficient cause from continuing the appeal
On February 26 1960 the appeal itself was dismissed as having abated
On May 14 1960 an application for leave to appeal to the Supreme Court was presented to the High Court
The heading of the application was described to be one for leave to the Supreme Court from the judgment dated February 16 1960 in CM No 1212C of 1959 in RFA No 44 of 1955
This application was rejected on May 17 1960
Thereafter an application for special leave was filed in this Court
Special leave was prayed for appealing from the judgment of the High Court of Punjab in RFANo44 of 1955 and CM No 1212 C59 dated February 1626 of 1960
The order granting special leave said That special leave be and is hereby granted to the petitioner to appeal to this Court from the judgment and order dated 16th day of February 1960 and 26th day of February 1960 of the Punjab High Court in Civil Miscellaneous No 1212 C of 1959 and Regular First Appeal No 44 of 1955
 A preliminary objection was taken to the effect that the appellant having not applied to the 471 High Court for leave to appeal against the order dated February 26 1960 in Regular First Appeal that order had become final and special leave could not be asked for from this Court in view of Order XIII r2 of the Supreme Court Rules 1950 the rule being Where an appeal lies to the Supreme Court on a certificate issued by the High Court or other tribunal no application to the Supreme Court for special leave to appeal shall be entertained unless the High Court or tribunal concerned has first been moved and it has refused to grant the certificate
 We do not see any force in this objection and reject it
The application for leave to appeal though described as one against the judgment in the miscellaneous case and not against the order in the regular appeal stated in paragraph I that the regular first appeal had been ordered to have abated and in paragraph 3 that it was a fit case in which necessary certificate for filing an appeal against the judgment passed by the Court in regular first appeal No 44 of 1955 be granted
Both these statements refer to the proceedings in connection with the regular first appeal and not of the order on the miscellaneous application for substitution
Ground No 2 referred to those proceedings
The application therefore was really an application for leave to appeal against both the orders
The High Court does appear to have construed that application in this manner
Its order dated May 17 1960 stated  The appeal was decided as having abated because the appellant failed to show sufficient cause for not bringing the legal 472 representatives of the deceased respondent within time To appreciate the real contention between the parties before us we may now give in brief the reasons for the order of the High Court dated February 16 1960
It may be pointed out that in the narration of facts the High Court stated that the application dated March 17 1958 was filed under O XXII rr 4 and 9 read with section 151 of the Code  he application as printed on the record did not purport to be under r 9 of O XXII CPC There is not a word in the application that the appeal had abated and that the abatement be set aside The error in this respect seemed to have further led to the error in stating that the reason for the delay given in the application was that the Divisional Engineer Telegraphs came to know about Ram Charan s death on February 3 1958 there being no reason mentioned in the application
It was just stated as a matter of fact that the Engineer had come to know of the death on February 3 1958
The order states that some application was presented by the Union of India on May 14 and that it was stated therein that the interval between February 3 and March 17
1958 was spent in collecting information about the legal representatives of the deceased
This application however is not printed in the paper book
The High Court relied on the Full Bench case of its Court reported in Firm Dittu Ram Eyedan vs Om Press Co Ltd 1 which held that ignorance of the death of the defendant was not a sufficient cause for setting aside the abatement when an application to bring the legal representatives of  the deceased on the record was made after the expiry of the period of limitation as the law imposed an obligation on the person applying for bringing the legal representatives of the deceased on the record and he had therefore to show absence of want of care
The 1 1960 1 1
L R Punj 935 473 High Court held that the Union of India did not state either in its application dated March 17 1958 or in the other application dated May 14 1958 that the Government had not been careless in the matter and had been vigilant in keeping itself informed regarding the whereabouts of Ram Charan and that it would not have been difficult for the Government to have come to know of Ram Charan s death who lived in Ambala Cantonment to which place the appeal related
The contentions raised for the appellant in this Court are  1 That mere ignorance of death of the res pondent was sufficient cause for the appel lant s inability to apply for the impleading of the legal representatives within time unless it be that the appellant was guilty of some negligence or some act or omission which led to the delay in his making the application
2 Once the respondent is served in the first appeal no duty is cast on the appellant to make regular enquiries about the state of health of the respondent
3 The expression sufficient cause  should be liberally construed in order to advance the cause of justice
4 The Court itself  has inherent power to add legal representatives to do full justice to the party
5 The High Court misapplied the decision of the Full Bench of its Court to the facts of the present case
We may say at once that there is no force in the fourth point
The Court is not to invoke its inherent 474 powers under section 151 CPC for the purposes of impleading the legal representatives of a deceased respondent if the suit had abated on account of the appellant not taking appropriate steps within time to bring the legal representatives of the deceased party on the record and when its application for setting aside the abatement is not allowed on account of its failure to satisfy the Court that there was sufficient cause for not impleading the legal representatives of the deceased in time and for not applying for the setting aside of the abatement within time
There is no question of construing the expression sufficient cause  liberally either because the party in default is the Government or because the question arises in connection with the impleading of the legal representatives of the deceased respondent
The provisions of the Code are with a view to advance the cause of justice
Of course the Court in considering whether the appellant has established sufficient cause for his not continuing the suit in time or for not applying for the setting aside of the abatement within time need not be over strict in expecting such proof of the suggested cause as it would accept for holding certain fact established both because the question does not relate to the merits of the dispute between the parties and because if the abatement is set aside the merits of the dispute can be determined while if the abatement is not set aside the appellant is deprived of his proving his claim on account of his culpable negligence or lack of vigilance
This however does not mean that the Court should readily accept whatever the appellant alleges to explain away his default
It has to scrutinize it and would be fully justified in considering the merits of the evidence led to establish the cause for the appellant s default in applying within time for the impleading of the legal representatives of the deceased or for setting aside the abatement
475 It is true as contended that it is no 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 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 Rule 9 of O XXII of the Code requires the plaintiff to prove that he was prevented by any sufficient cause from continuing the suit
The mere allegation about his not coming to know of the death of the opposite party is not sufficient
He had to state reasons which according to him led to his not knowing of the death of the defendant within reasonable time and to establish those reasons to the satisfaction of the Court specially when the correctness of those reasons is challenged by the legal representatives of the deceased who have secured a valuable right on the abatement of the suit
It is not necessary to consider whether the High Court applied its earlier Full Bench decision correctly or not when we are to decide the main question urged in this appeal and that being the first contention Rules 3 and 4 of O XXII CPC lay down respectively the procedure to be followed in case of death of one of several plaintiffs when the right to sue does not survive to the surviving plaintiffs alone or that of the sole plaintiff when the right to sue survives or of the death of one of several defendants or of sole defendant in similar circumstances
The procedure requires an application for the making of the legal representatives of the deceased plaintiff or defendant a party to the suit
It does not say who is to present the application
Ordinarily it would be the plaintiff as by the abatement of the suit the defendant stands to gain
However an application is necessary to be made for the purpose
If no such application is made within the time allowed by law the suit abates to far as the deceased 476 Plaintiff is concerned or as against the deceased defendant
The effect of such an abatement on the suit of the surviving plaintiffs or the suit against the surviving defendants depends on other considerations as held by this Court in State of Punjab vs Nathu Ram 1 and Jhanda Singh vs Gurmukh Singh 2 
Any way that question does not arise in this case as the sole respondent had died
It may be mentioned that in view of r 11 of OXXII the words plaintiff  defendant  and suit in that Order include appellant  respondent  andappeal  respectively
The consequence of the abatement of the suit against the defendant is that no fresh suit can be brought on the same cause of action
Sub rule 1 of r 9 bars a fresh suit
The only remedy open to the plaintiff or the person claiming to be the legal representative of the deceased plaintiff is to get the abatement of the suit set aside and this he can do by making an application for that purpose within time
The Court will set aside the abatement if it is proved that the applicant was prevented by any sufficient cause from continuing the suit
This means that the applicant had to allege and establish facts which in the view of the Court be a sufficient reason for 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 of the suit unless the very circumstances of the case make it so obvious that the Court be in a position to hold that there was sufficient cause for the applicants not continuing the suit by taking necessary steps within the period of limitation
Such would be a very rare case
This means that the bare statement of the applicant that he came to know of the death of the other party more than three months after the death will not 1   2 C A No 344 of 1956 decided on April 10 1962
477 ordinarily be sufficient for the Court s holding that the applicant had sufficient cause for not impleading the legal representatives within time
If the mere fact that the applicant had known of the death belatedly was sufficient for the Court to set aside the abatement the legislature would have
expressed itself differently and would not have required the applicant to prove that he was prevented by any sufficient cause from continuing the suit
The period of limitation prescribed for making such an application is three months under article 171 of the First Schedule to the Limitation Act
This is a sufficiently long period and appears to have been fixed by the legislature on the expectancy that ordinarily the plaintiff would be able to learn of the death of the defendant and of  the persons who are his legal representatives within that period
The legislature might have expected that ordinarily the interval between two successive hearings of a suit will be much within three months and the absence of any defendant within that period at a certain hearing may be accounted by his counsel or some relation to be due to his death or may make the plaintiff inquisitive about the reasons for the other party s absence
The legislature further seems to have taken into account that there may be cases where the plaintiff may not know of the death of the defendant as ordinarily expected and therefore not only provided a further period of two months under article 176 for an application to set aside the abatement of the suit but also made the provisions of section 5 of the Limitation Act applicable to such applications
Thus the plaintiff is allowed sufficient time to make an application to set aside the abatement which if exceeding five months be considered justified by the Court in the proved circumstances of the case
It would be futile to lay down precisely as to what considerations would constitute sufficient cause  for setting aside the abatement or for the plaintiff s not applying to bring the legal representatives of the deceased 478 defendant on the record or would be held to be sufficient cause for not making an application to set aside the abatement within the time prescribed
But it can be said that the delay in the making of such applications should not be for reasons which indicate the plaintiff s negligence in not taking certain steps which he could have and should have taken
What would be such necessary steps would again depend on the circumstances of a particular case and each case will have to be decided by the Court on the facts and circumstances of the case
Any statement of illustrative circumstances or facts can tend to be a curb on the free exercise of its mind by the Court in determining whether the facts and circumstances of a particular case amount to sufficient cause  or not Courts have to use their discretion in the matter soundly in the interests of justice
It will serve no useful 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 its 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 its culpable negligence or mala fides
We have shown above that the mere statement that the appellant was ignorant of the death of the respondent cannot be sufficient and that it is for the appellant in the first instance to allege why he did not know of the death of the respondent earlier or why he could not know about it despite his efforts if he had made any efforts on having some cause to apprehend that the respondent might have died
The correctness of his reasons can be challenged by the other party
The Court will then decide how far those reasons have been established and suffice to hold that the appellant had sufficient cause for not making an application to 479 bring the legal representatives of the deceased respondent earlier on the record
In the present case the appellant had adopted a very wrong attitude from the very beginning
In its application dated March 17 it merely said that Ram Charan died on July 21 1957 and that Shri Bhatia the Divisional Engineer Telegraphs Ambala Cantonment learnt about it on February 3 1958
Shri Bhatia did not say anything more in his affidavit and did not verify it on the basis of his personal knowledge
Why he did not do so is difficult to imagine if
he came to know of the death on February 3 1958
He was the best person to say that this statement was true to his knowledge rather than true to his belief
Further it appears from the judgment of the High Court that no further information was conveyed in the application dated May 13 1958 which is not on the record
The most damaging thing for the appellant is that the application came up for bearing before the learned Single judge and at that time the stand taken by it was that limitation for such an application starts not from the date of death of the respondent but from the date of the appellant s knowledge of the death of the respondent
The appellant s case seems to have been that no abatement had actually taken place as the limitation started from February 3 1958 when the appellant s officer knew of the death of the respondent and the application was made within 3 months of that date
It appears to be due to such an attitude of the appellant that the application dated March 17 1958 purported to be simply under r 4 O XXII and did not purport to be under r 9 of the said Order as well and that no specific prayer was made for setting aside the abatement
The limitation for an application to set aside abatement of a suit does start on the death of the deceased respondent
Article 171 First Schedule to the Limitation Act provides that
It does not provide 480 the limitation to start from the date of the appellant s knowledge thereof
The stand taken by the appellant was absolutely unjustified and betrayed complete lack of knowledge of the simple provision of the Limitation Act
In these circumstances the High Court cannot be said to have taken an erroneous view about the appellant s not establishing sufficient ground for not making an application to bring on record the representatives of the deceased respondent within time or for not making an application to set aside the abatement within time
We therefore see no force in this appeal and dismiss it with costs
Appeal dismissed


Summary:
Ram Charan obtained a money decree against the Union of India
An appeal was filed against that decree in the High Court
Ram Charan respondent died on july 21 1957
On March 18 1958 an application was filed in the High Court under 022 R 4 read with section 151 of the Code by Civil Procedure stating that the respondent had died on July 21 1957 and the Divisional Engineer Telegraphs learnt of his death on February 3 1958 and the deceased had left his widow and an adopted son as his legal representatives
A prayer was made to bring the legal respresentatives of the deceased on record
The High Court dismissed the application on the ground that the appellant had failed to show sufficient cause for not bringing the legal representatives of the deceased on record within time
The appeal was also dismissed
In the appeal before this Court it was contended on behalf of the appellant that the mere ignorance of death of the respondent was sufficient cause for the appellant s inability to apply for the impleading of legal representatives within time unless the appellant was guilty of some negligence or some act or omission which led to delay in his making the application that once the respondent was served no duty was cast on the appellant to make further enquiries about the state of health of the respondent that expresssion sufficient cause  should be liberally construed in order to advance the cause of justice that the Court itself had inherent power to add legal representatives to do justice to the party and that the High Court misapplied the decision of the Full Bench 468 in Firm Dittu Ram Eyedan vs Om Press Co Ltd to the facts of the present case
Held that limitation for an application to set aside the abatement of an appeal starts on the death of the respondent and not from the date of the appellant s knowledge thereof
Held also that the Court is not to invoke its inherent powers under section 151 CPC for the purpose of impleading legal representatives of a deceased respondent if the suit had abated on account of the appellant not taking appropriate steps within time to bring legal representatives of the deceased on the record and when its application for setting aside abatement was not allowed on account of its failure to satisfy the court that there was sufficient cause for not impleading the legal representatives of the deceased in time and for not applying for setting aside of the abatement within time
Held also that the expression sufficient cause  is not to be liberally construed either because the party in default was the Government or because the question arose in connection with the impleading of the legal representatives of the deceased respondent
The Court should not readily accept whatever is alleged to explain away the default
The delay in making the application should not be for reasons which indicate the negligence of the party making the application in not taking certain steps which he could have and should have taken The court has to be satisfied that there were certain valid reasons for the applicant not knowing the death within a reasonable time
The bare statement of the applicant is not enough
Firm Dittu Ram Eyedan vs Om Press Co Ltd 1960 1 ILR Punjab 935 FB State of Punjab vs Nathu Ram  and Jhanda Singh vs Gurmukh Singh C A No 344 of 1936 dated 10462 referred to