Subba Rao, J. - (1.) These are two applications, one for the substitution of the legal representatives of respondent No. 7 in Civil Appeal No. 430 of 1963 on the file of this Court and the other for the condensation of delay in filling the first application.
(2.) The first question is whether there is sufficient ground for excusing the delay in filing the application for bringing the legal representatives of the 7th respondent on record. The facts are as follows:Sakhararn Maruti Jedhe and others filed Special Civil Suit No. 10 of 1954 in the Court of the Civil Judge, Senior Division, Poona, against Rangubai Kom Shanker Jagtap for possession of the plaint-schedule property and for mesne profits and obtained a decree therein. Against the said decree the defendant preferred an appeal to the High Court of Bombay. The High Court by its judgment dated April 8, 1959, dismissed the appeal. The defendant filed an application for special leave to prefer an appeal to this Court and the same was granted on June 16, 1959. The appeal was admitted on July 27, 1961. Between these two dates, on November 12, 1959, the 7th respondent Keshavarao Marutirao Jedhe died. Thereafter, on March 7, 1964, the defendant filed Civil Application No. 1118 of 1964 in the High Court of Bombay for bringing on record the legal representatives of the 7th respondent and for necessary certificate to that effect. On, August 11, 1964, a Division Bench of the High Court granted the certificate. On February 19, 1964, the defendant filed in this Court Civil Miscellaneous Petition No. 2401 of 1964 for bringing on record the legal representatives of the 7th respondent and on October 8, 1964, filed Civil Miscellaneous Petition No. 2402 of 1964 for condoning the delay of 4 years and 19 days in filing the aforesaid first petition. In the said petition the petitioner gave two reasons for condoning the delay, namely, (i) the petitioner is a poor widow living in Poona with her daughters and there is no male members in the family of the petitioner to look after the proceeding and (ii) after the preliminary decrees in the proceedings for the determination of the mesne profits, the plaintiffs brought the heirs and legal representatives of the deceased 7th respondent on record within the time prescribed and as the legal representatives were brought on record at one stage of the suit, no question of abatement would arise in respect of the appeal. The respondents filed a counter-affidavit pointing out that there were no grounds for excusing the inordinate delay, that the appellant had been conducting this long drawn litigation from the year 1946, that she had a son-in-law who was helping her, that the deceased was a prominent man of Poona whose death was published in all the newspapers and that the appellant was living in the same locality and she must have had knowledge of his death soon after it occurred. It was further pleaded that the fact that the legal representatives of the 7th respondent were brought on record in the final decree proceedings could not in law prevent the abatement of the appeal, if they were not brought on record in the appeal in time.
(3.) Under O. XVI, R. 14, of the Supreme Court Rules, 1950, an application to bring on record the legal representatives of a deceased appellant or respondent shall be made within 90 days of the death of the said appellant or respondent under the proviso thereto; in computing the said period the time taken in obtaining a certificate from the High Court shall be excluded. Even if the said time is excluded, them will be a delay of about 3 1/2 years in filing the application to bring the legal representatives of the deceased 7th respondent on record. From the counter-affidavit filed by the respondents it is clear that the 7th respondent was a prominent citizen of Poona and the fact of his death was published in all newspapers; and the petitioner resides very near the place where the 7th respondent was living. She has been conducting this litigation from the year 1946 and was in contact with her Advocates from time to time in connection with the appeal, She has also a son-in-law who is helping her in the litigation. She had also the knowledge of the fact that the legal representative of the 7th respondent wote brought on record in the final decree proceedings. In the circumstances the fact that she is an illiterate woman cannot possibly be a ground for excusing this inordinate delay in bringing the legal representatives of the 7th respondent on record in the appeal. We, therefore, hold that there is no sufficient ground for excusing the delay in bringing the legal representatives of the 7th respondent on record;