ORDER [ENTITY], J.
1. Feeling aggrieved by an order dated 7-12-1996 passed by the First Appellate Court whereunder allowing the appeal and setting aside the order of the trial Court, rejecting the application filed by the plaintiffs under [SECTION], [SECTION], [ACT] seeking to bring on record the heirs and legal representatives of [ENTITY], the defendant No. 1 the said application has been granted, the proposed defendant has now approached this Court seeking reversal of the impugned order and restoration of the order of the trial Court.
2. I have heard the learned counsel for the defendant-applicant as well as the learned counsel representing the contesting respondents and have also carefully perused the record.
3. The facts in brief, shorn of details and necessary for disposal of this case lie in a narrow compass. The suit giving rise to this revision had been filed by the plaintiff-respondents Nos. 1 to 6 against [ENTITY], who was impleaded as defendant No. 1 and the Madhya Pradesh State Government through Collector, which had been impleaded as defendant No. 2. The plaintiffs claimed a declaratory decree to the effect that the plaintiffs Nos. 1 and 2 were co-owners in possession of the agricultural holdings in dispute to the extent of half share and plaintiffs Nos. 3 to 6 were co-owners to the extent of l/4th share and were entitled to get their names recorded as such in the revenue papers in place of the name of the defendant, [ENTITY]. The plaintiffs had alleged that [ENTITY] was the real brother of [ENTITY] and [ENTITY], the plaintiffs Nos. 1 and 2, and the real uncle of plaintiff No. 3 and plaintiffs Nos. 4, 5 were his nephews. The land in dispute was claimed to be coming down from the common ancestor but in the revenue record it stood recorded exclusively in the name of [ENTITY], showing him to be the sole owner thereof.
4. During the pendency of the suit an application was filed on 29-6-1992 by the present applicant, [ENTITY], bringing to the notice of the Court that he had come to know from the rumour spread over in the village that [ENTITY] and [ENTITY] and others had filed a suit against his father, [ENTITY], who had died on 12-11-1989 but in spite of having full knowledge of the death of [ENTITY] the plaintiffs had not taken care to bring on record his heirs and legal representatives with the result that the suit stood abated and could not proceed, therefore, the same may be dismissed.
5. Thereafter, on 21-7-1992, the plaintiffs moved an application under [SECTION], [SECTION], [ACT] praying for bringing on record [ENTITY] son of [ENTITY] and [ENTITY] d/o [ENTITY] as his heirs and legal representatives asserting that the plaintiffs had come to know from the application of [ENTITY] dated 29-6-1992 that [ENTITY], the sole defendant had died on 12-11-1989.
6. The aforesaid application was contested by [ENTITY] asserting that the plaintiffs had full knowledge of the death of [ENTITY] which had taken place on 12-11-1989. The plaintiffs were near relatives of [ENTITY] and resided in the same village where [ENTITY] resided. It was also asserted that they had attended the funeral ceremony of [ENTITY]. It was further asserted that in the revenue records the name of [ENTITY] had been substituted in place of [ENTITY]. It was further asserted that the application was grossly belated and there was no explanation for the inordinate delay in moving the application.
7. In support of the objection [ENTITY] filed his own affidavit sworn on 3-11-1992. In this affidavit it had been asserted that [ENTITY], the defendant, and the plaintiff [ENTITY] and [ENTITY] were real brothers. It was also asserted that the plaintiffs, [ENTITY] and [ENTITY] and [ENTITY] were the successor-in-interest of [ENTITY], the fourth son of [ENTITY], the father of applicants Nos. 1 and 2. It was asserted that the plaintiffs had deliberately omitted to move the application for substitution to bring on record the heirs and legal representatives of the deceased [ENTITY] with the malafide intention to obtain an ex parte decree without any notice to him and the legal representatives of deceased [ENTITY], the sole defendant. In this affidavit it was also indicated that the parties belonged to the same family. The plaintiff had full knowledge of the death of [ENTITY] from much before the moving of the application and the allegation that they came to know it only from the application of the son of the deceased [ENTITY] was absolutely incorrect.
8. It may be noticed that the assertions made in the affidavit of [ENTITY], the son of the deceased sole defendant, [ENTITY], remained uncontroverted and unrebutted as no counter-affidavit was filed denying the correctness of the assertions made therein.
9. The trial Court in its order dated 15-3-1994 while disposing of the aforesaid application noticed that there was no dispute that [ENTITY] had died on 12-11-1989 and further that it could not be believed, taking into consideration the facts and circumstances brought on record and the near relationship of the plaintiffs with the deceased defendant, that the plaintiffs had no knowledge of the death of [ENTITY] and came to know about it only from the application filed by [ENTITY] on 29-6-1992.
10. The trial Court also noticed that the plaintiffs had not given any satisfactory explanation for the delay in moving the application. The trial Court was of the view that neither any application had been filed explaining the delay in moving the application nor any satisfactory explanation for the delay had been given. It was also observed that the application under [SECTION], [SECTION], [ACT] filed by the plaintiff was not a bona fide one especially when the assertion made in the affidavit of [ENTITY] had not been controverted in any manner. In the aforesaid circumstances, the trial Court held that the suit had abated and no justifiable ground had been made out for bringing on record the heirs and legal representatives of the deceased sole defendant.
11. On the aforesaid findings the trial Court rejected the application filed by the plaintiffs and holding the suit to have abated directed that the record be consigned.
12. The plaintiffs thereafter filed an appeal challenging the order of the trial Court, referred to hereinabove. The First Appellate Court endorsed the findings returned by the trial Court against the plaintiffs rejecting their claim that they had come to know about the death of the deceased sole defendant only from the application filed by [ENTITY]. However, the First Appellate Court came to the conclusion that a liberal approach should be adopted in the matter relating to the setting aside of the abatement and that it would be just and proper not to prevent the plaintiffs from getting adjudication of their claim on merits. The First Appellate Court also expressed the view that since the plaintiffs were villagers they might have forgotten to bring on record the heirs and legal representatives of the deceased sole defendant. On the aforesaid findings allowing the appeal and setting aside the order of the trial Court the case was remanded to the trial Court for being disposed of finally on merits after affording opportunity to the plaintiffs to bring on record the heirs and legal representatives of the deceased sole defendant.
13. The learned counsel for the applicant has strenuously urged that the First Appellate Court had no jurisdiction to entertain the appeal against the order holding the suit to have abated. It has further been contended that the plaintiffs had not moved any application under [SECTION], [SECTION], [ACT] seeking setting aside of the abatement of the suit which had automatically set in. In this view of the matter, it is urged that the application in question filed under [SECTION], [SECTION], [ACT] by the plaintiffs could not be granted and there was absolutely no justification for upsetting the order passed by the trial Court.
14. It has further been urged that in any view of the matter on the findings returned against the plaintiffs on the question relating to the total absence of any sufficient cause in explaining the delay in moving the application the action of the plaintiffs indicated a mala fide intention on their part and the First Appellate Court acted with manifest illegality in interfering in the discretion exercised by the trial Court,' especially in the absence of any such compelling circumstance which could justify such an interference.
15. Learned counsel for the plaintiffs, however, on the other hand has tried to support the impugned order asserting that on the facts found established on record no justifiable ground had been made out for interference in the discretion exercised by the First Appellate Court and in any case since it could not be said that the impugned order has resulted in failure of justice this revision deserves to be dismissed.
16. I have given my anxious consideration to the rival contentions of the learned counsel for the parties.
17. In the present case the plaintiffs had moved the application seeking substitution of the heirs and legal representatives of the deceased sole defendant in his place under [SECTION], [SECTION], [ACT], which application was inordinately delayed. On the date when the aforesaid application had been filed even the limitation prescribed for moving the application for setting aside the abatement of the suit on account of the death of the deceased sole defendant had expired. In their application the only prayer which was made by the plaintiffs was to the effect that the heirs and legal representatives indicated in the application be brought on record in place of the deceased, [ENTITY], the sole defendant. The contention of the learned counsel for the applicant is that the aforesaid prayer ex-facie did not include the relief of setting aside the abatement which had automatically set in. In its decision in the case of [PRECEDENT], a Full Bench of this Court had clarified that an abatement is automatic consequence of the failure of the legal representatives being brought on record within the period of limitation and no formal order is necessary.
18. On the strength of the aforesaid observation, it is contended that in the circumstances of the present case when the abatement had automatically set in, it could not have been set aside unless there was a proper application and a relief was claimed in this regard especially when even the limitation prescribed for moving such an application had expired. What has been urged is that in the absence of a prayer for setting aside abatement an application with the only prayer for substitution of the heirs and legal representatives of the deceased defendant was liable to be rejected outright.
19. In the aforesaid connection it may be noticed that a similar controversy had been raised before the Allahabad High Court in the case of [PRECEDENT]. In its aforesaid decision the Allahabad High Court after taking into consideration various earlier decisions had clarified that an application for substitution with a prayer for substituting the heirs and legal representatives of the deceased defendant could itself be treated to be an application for setting aside the abatement also.
20. In the circumstances, the fact that in the application filed by the plaintiffs there was no indication that it should be treated as an application for setting aside abatement also could not be taken to be fatal and the prayer for substitution had to be taken to be wide enough to include the prayer for setting aside abatement which had already set in.
21. In fact, the observations made by the Hon'ble Supreme Court in its decision in the case of [PRECEDENT], also indicate that even though no application had been filed for setting aside abatement once the delay in moving the application for substitution alone had been condoned and the heirs were allowed to be brought on record the abatement also stood set aside.
22. In the aforesaid view of the matter the contention of the learned counsel for the applicant that the absence of the prayer for setting aside abatement was fatal and in its absence the application under [SECTION], [SECTION], [ACT] could not be entertained and allowed is totally devoid of merits and is not at all acceptable.
23. It has been contended that the plaintiffs had not moved any application seeking condonation of delay in moving the application for substitution and therefore there was no occasion which could be said to have arisen to consider the sufficiency or otherwise or the cause for the delay.
24. In this connection suffice it to say that the absence of a formal prayer for condoning the delay did not bear the Court from taking into account the relevant material on record for the purpose of deciding as to whether applicant had made out sufficient cause for condoning the delay in making the application for substitution. In its decision in the case of [PRECEDENT], it had been clarified by the Punjab High Court that merely because there was no written application filed by the appellant is hardly a sufficient ground for refusing him the relief, if he is otherwise entitled to it, indicating that procedure is meant for advancing and not for obstructing the cause of justice; and if the entire material was on the record, it could not promote the ends of justice, if that material was ignored and the relief refused to the appellant, merely because he had not claimed it by means of a formal application in writing or that a formal affidavit was not filed. It was further indicated, that the language of [SECTION] of the [ACT] does not provide that an application in writing must be filed before relief under the said provision can be granted. While making the aforesaid observations the Punjab High Court drew support from an earlier decision of the Allahabad High Court in the case of [PRECEDENT].
25. In the circumstances indicated hereinabove the contention of the learned counsel for the applicant that in the absence of any formal application seeking condonation of delay in moving the application the Court stood barred from considering the sufficiency or otherwise of the cause for the delay in moving the application on the evidence and materials already on record is not at all acceptable.
26. The learned counsel for the applicant has further urged that the appeal filed by the plaintiffs against the order passed by the trial Court was not maintainable and in this view of the matter it was not open to the First Appellate Court to upset the order declaring the suit to have abated rejecting the application filed by the plaintiffs under [SECTION], [SECTION], [ACT]. So far as this aspect is concerned, a perusal of [SECTION], [SECTION] of the [ACT] indicates that in [SECTION] thereof an order under [SECTION] refusing to set aside the abatement or dismissal of a suit has been specifically made appealable. An appeal, therefore, lies against an order passed by the trial Court refusing to set aside the abatement. As already indicated hereinabove a prayer seeking substitution of the heirs and legal representatives of a deceased defendant and bringing them on record in his place is wide enough to include within its ambit the prayer for setting aside the abatement which had already set in on account of the death of the defendant. In the circumstances, therefore, the rejection of the application filed by the plaintiffs seeking to bring on record the heirs and legal representatives of the deceased defendant had to be treated as a refusal to set aside the abatement which had already set in as noticed hereinabove. The order passed by the trial Court was, therefore, appealable under [SECTION], [SECTION] of the [ACT]. The contention of the learned counsel for the plaintiffs in this regard is totally devoid of merits and is not acceptable.
27. The learned counsel for the applicant has vehemently urged that in any view of the matter the First Appellate Court had acted with manifest illegality in interfering in the discretion exercised by the trial Court in refusing the prayer to condone the inordinate delay in moving the application for substitution under [SECTION], [SECTION], [ACT] and that too much after the expiry of the limitation prescribed for setting aside the abatement contemplated under [SECTION], [SECTION], [ACT].
28. It has been urged that on the facts found by the trial Court in the absence of any counter affidavit denying or controverting the assertions made by [ENTITY] in his affidavit no reasonable or prudent person could arrive at a conclusion that the delay in moving the application could be taken to have been sufficiently explained or in other words sufficient cause had been made out explaining the delay. It is true that the matter relating to condonation of delay should be given a liberal approach. However, it may be noticed that although as provided under [SECTION], [SECTION], [ACT] where the plaintiff was ignorant of the death of a defendant, and could not for that reason, make an application for the substitution of the legal representative of the defendant under that rule within the period specified in the [ACT] and the suit has, in consequence, abated, and the plaintiff applies after the expiry of the period specified therefor in the [ACT], for setting aside the abatement and also for the admission of that application under [SECTION] of that Act on the ground that he had, by reason of such ignorance, sufficient cause for not making the application within the period specified in the said Act, the Court shall in considering the application under the said [SECTION], have due regard to the fact of such ignorance, if proved, yet a heavy burden stands cast on the plaintiff to establish that that he was ignorant of the date of death of defendant and it was only by reason of such ignorance that he could not move the application within the time prescribed.
29. In the present case both the Courts below have concurrently found that the plaintiffs had made a false assertion that they were ignorant of the date of death of the deceased sole defendant and they came to know about it only from the application filed by [ENTITY]. The plaintiffs were villagers, but none of them had the courage of denying or controverting the assertions made by [ENTITY] in his affidavit filed in support of his objections to the application under [SECTION], [SECTION], [ACT] filed by the plaintiffs. No explanation, whatsoever, except ignorance of the date of death of the sole defendant had been put forward by the plaintiffs for explaining the delay in moving the application. The First Appellate Court assumed without any basis that the plaintiffs might have forgotten to bring on record the heirs and legal representatives of the deceased defendant as they were villagers. Even a plea to this effect that the plaintiffs were ignorant of the procedure had not been raised by the plaintiffs and they never claimed to be rustic villagers who were ignorant about the legal procedure. The First Appellate Court, therefore, obviously made out a new case for the plaintiffs which had never been even pleaded by them. It must be emphasised that the period of limitation commences to run from the date of death of the defendant and not from its knowledge on the part of the plaintiffs. It was so clarified by the Hon'ble Apex Court in its decision in the case of [PRECEDENT].
30. It should not be lost sight of that the abatement, if it had already set in, can be set aside if it is proved that the applicant was prevented by any sufficient cause from continuing the suit. Obviously, in such circumstance, the applicant had to allege and establish facts, which in view of the Court made out sufficient ground for his not making an application for bringing the legal representatives of the deceased within time. However, 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 is in a position to hold that there was sufficient cause for the applicant's not continuing the suit by taking necessary steps within the period of limitation. This means that the bare statement of the applicant that he came to know of the death of other party more than three months after the death will not ordinarily be sufficient for the Court's holding that the applicant had sufficient cause for not impleading the legal representatives within time. The Hon'ble Supreme Court in its aforesaid decision in the case of [PRECEDENT], (supra), had clearly observed that 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.
31. The provisions contained in [SECTION], [SECTION] of the [ACT] which was brought in by Amendment of the [ACT] stipulates that where the plaintiff was ignorant of the death of a defendant, and could not, for that reason, make an application for substitution of the legal representative of the defendant under this rule within the period specified in the [ACT], and the suit has, in consequence, abated, and the plaintiff applies after the expiry of the period specified therefor in the [ACT], for setting aside the abatement and also for the admission of that application under [SECTION] of that Act on the ground that he had, by reason of such ignorance, sufficient cause for not making the application within the period specified in the said Act, the Court shall, in considering the application under the said [SECTION], have due regard to the fact of such ignorance, if proved. However, where it stands established from the record that the assertion of the fact of ignorance of death was false no sufficient cause can be said to have been made out even after taking into account the aforesaid provision contained in [SECTION], [SECTION] of the [ACT].
32. I am of the considered opinion that an application for bringing on record the legal representatives not supported by an affidavit and filed with inordinate delay without any sufficient cause having been made out and containing false averments does not deserve to be allowed.
33. Considering the facts and circumstances brought on record and my conclusions indicated herein above sufficient ground has been made out for interference by this Court.
34. In the result, this revision succeeds. The impugned order passed by the First Appellate Court is set aside and the order of the trial Court dated 15-3-1994 is restored.
35. There shall, however, be no order as to costs.