Ignorance of the death of the respondent, coupled with diligence in prosecuting the appeal and absence of mala fide or culpable negligence, can constitute sufficient cause for setting aside the abatement of an appeal under Order 22, Rule 9 of the Code of Civil Procedure.

( 1 ) IN this application under Order 22, Rule 9 read with Rule 11 of the Code of Civil Procedure, the petitioner-appellant, Corporation of Calcutta, has prayed for setting aside the abatement of the present appeal. Admittedly, the respondent Murari Churn Law died on Jan. 25, 1973 surviving him his widow Sm. Nayan Tara Law and three sons, namely, Gunanka Churna Law, Debinka Churn Law and Mrinanka Churn Law as his legal heirs. There is also no dispute that no application for substitution of the heirs in place of the respondent Murari Churn Law, deceased, was made within three months from the date of his death. Thus, under Order 22, Rule 4 read with Rule 11 of the Code, the appeal stood abated. Thereafter, no application was made by the appellant for setting aside the abatement within two months from the date when the abatement took place. The present petition was filed on May 23, 1974 for setting aside the said abatement.

( 2 ) MR. Jayanta Mitra, Counsel for the petitioner, has submitted that the materials placed before this Court as disclosed in the petition, affidavit-in-opposition and affidavit-in-reply establish that there is "sufficient cause" which has prevented his client for not making the application within the prescribed period of limitation. Relying upon Union of India v. Ram Charan, he has submitted that the tests laid down in the said decision would clearly show that there has been no culpable negligence on the part of his client to make the present application and, as such, the delay in making this application has been caused on reasonable grounds and that such delay should be condoned under Section 5 of the Limitation Act.

( 3 ) MR. Dipankar Ghosh, counsel for the heirs of the deceased respondent, relying upon the same Supreme Court decision, has submitted that no "sufficient cause" has been shown by the petitioner which has prevented the latter from presenting this application within the prescribed period of limitation. He has laid emphasis on the fact that the appellants' mere absence of knowledge of the death of the respondent cannot be considered as "sufficient cause" within the meaning of Order 22, Rule 9 of the Code or Section 5 of the Limitation Act, 1963. According to him, the said Murari Churn Law deceased, is a well-known respectable man in Calcutta and his death was reported in almost all the daily newspapers in Calcutta and the appellant should have immediately taken steps in presenting this application. Further, he has laid stress on the fact that this belated application does not disclose any ground which would persuade the Court to set aside the abatement. He has also added that the petitioner had also constructive knowledge of the death of Murari Churn Law inasmuch as he was cremated at the Corporation Burning Ghat where the death was recorded.

( 4 ) COUNSEL for both the parties have relied upon the principles of law laid down in Union of India v Ram Charan, (supra ). It is well settled that period of limitation as set out in Articles 120 and 121 of the Limitation Act, 1963, starts from the date of death of the respondent and from date of abatement respectively. The point to be decided is whether in the facts and circumstances of this case the abatement should be set aside on the ground that the petitioner has been able to place before this Court "sufficient cause" within the meaning of Order 22, Rule 9 and Section 5 of the Limitation Act It is true that the Supreme Court has made the following observations at page 219 :"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 t