Padma Khastgir, J. - (1.) This application has been taken out on behalf of the plaintiff for setting aside an abatement, recording the death of the defendant No. 1, the widow and the son of the said deceased defendant be substituted in the place and stead of Sardar Bhag Singh and other consequential reliefs. The Master's Summons was taken out on 11th Nov., 1976.
(2.) The facts of this case are that on 14th Jan. 1970 the suit was instituted by the plaintiff against the defendants for recovery of a sum of Rs. 12,542.95 being the arrears of hires due from the defendants under a hire purchase agreement and also for a declaration that the plaintiff is the owner of a motor vehicle bearing Police Registration No. WGG 8074 and the possession thereof and in the alternative, a decree for Rs. 40,000 being the present market value of the said vehicle. The writ of summons was served on the defendants Nos. 1 and 2. Mr. T. Goswami, Solicitor entered appearance on behalf of the defendant No. 1 and Mr. B.K. Datta, Solicitor for the defendant No. 2. The written statements were filed by both the defendants. The affidavits of documents were complete by 1974. On 11th Aug. 1976 the petitioner's Solicitors Messrs. P.D. Himatsingka & Co. mentioned the suit before the Hon'ble Mr. Justice S.C. Ghose for fixing an early date of hearing whereupon his Lordship directed that the suit would appear on 23rd Aug. 1976 in the list. On 24th Aug. 1976 Messrs. P.D. Himatsingka & Co. received a letter from Mr. T. Goswami, Solicitor intimating that the defendant No. 1 had died on 28th Dec. 1975. On 4th Sept. 1976 Messrs. P.D. Himatsingka & Co. enquired of Mr. T. Goswami about the names and addresses of the heirs and legal representatives of Sardar Bhag Singh. No reply was received from Mr. T. Goswami. Messrs. P.D. Himatsingka & Co. again sent a reminder on 16th October, 1976. In paragraph 10 of the petition the plaintiff stated that after diligent enquiry the petitioner has come to know that the defendant No. 1 has died leaving his widow and a son. As such the petitioner prayed for necessary orders on this application.
(3.) From both the letters which were written by Messrs. P.D. Himatsingka & Co. it will appear that they have not only requested Mr. T. Goswami to furnish the particulars but at the foot of the letters it will appear that they have also intimated their clients Ashok Finance Corporation to find out the names of the heirs and legal representatives. In this endorsement Messrs. P.D. Himatsingka & Co. also brought to the knowledge of their clients that such application will have to be made within 90 days from the date of the knowledge of the said death and also asked his client to treat that notice as extremely urgent. A similar endorsement will also be found from the letter dated 16th Oct. 1976.;