KAMINI KUMAR RUDRA PAUL AND OTHERS Vs. MONORANJAN KAR AND OTHERS

JUDGEMENT

(1.) SHRI Kamini Kumar Rudra Paul and Shri Krishna Mohan Rudra Paul, who were defendants Nos. 4 and 3 in Title Suit No. 25 of 1955 on the file of the Munsiff's Court in Kailashahar filed Second Appeal No. 6 of 1964 against the judgment and decree of the Additional District Judge, Tripura in Title Appeal No. 18 of 1962 (Title Appeal No 17 of 1964) confirming the judgment and decree of the Munsiff and directing eviction of the appellants from the plaint lands.

(2.) THE first appellant Shri Kamini Kumar Rudra Paul died on 12 -11 -1964 during the pendency of the Second Appeal. The second appellant is one of his sons. He and other heirs filed C.M.P. 56 of 1967 under Order 22, rule 9 (2) C.P.C. on 2 -4 -1065 to set aside the abatement of the appeal and to add the petitioners mentioned therein as legal representatives of the deceased first appellant. The respondent filed C.M.P. 55 of 1967 opposing the prayer of the petitioners.

(3.) AS pointed out by the learned counsel for the respondent the deceased first appellant left as many as 10 legal representatives, out of whom 4 are major sons 2 are major daughters, 1 widow and 3 minor children. The second appellant Shri Krishna Mohan Rudra Paul is said to be the second son of the deceased. The contention of the respondent's counsel is that the obsequies of the deceased were performed by the eldest son who is the first petitioner herein, that the other major sons did not have any interest in the litigation as there are concurrent findings of facts of two Courts, that they were guilty of Carelessness. negligence and want of due diligence that there are no grounds to set aside the order of abatement, by virtue of which the respondent obtained a valuable right and that the order of abatement cannot be set aside to his prejudice. The learned counsel for the petitioners however, contended that according to Dayabhaga law all the children of the deceased were to perform the obsequies, that it is also customary for some people not to leave the house for one month and that therefore the petitioners could not inform their counsel about the death of the first appellant and file the petition in time to add the legal representatives. But, even if his contention regarding the custom of the people governed by Dayabhaga law is correct still there was no justification for the petitioners to wait for 4 1/2 months. The statutory period of limitation of 90 days did not expire when they were free to move about after one month from the date of the death of the 1st appellant. But they filed the petition after the expiry of about 1 1/2 months from the date of the abatement of the appeal. It is therefore evident that the petitioners were grossly negligent and careless and did not care for their appeal at all. In such a case the order of abatement cannot be set aside. Vide also Firm Dittu Ram Eyedan v. Om Press Co. Ltd., Fazilka : AIR 1960 P&H. 335 (FB).