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High Court Of Calcutta
Pratibha Bonnerjea
NRIPATI NATH DUTT - Appellant
Versus
RAJLAKSHMI BISWAS - Respondent
Suit 2470 Of 1966
Decided On : 03/15/1978
ABATEMENT OF SUIT - CONDONATION OF DELAY - SUFFICIENT CAUSE - KNOWLEDGE OF SUIT - DUTY TO PROSECUTE DILIGENTLY - CULPABLE NEGLIGENCE - LACK OF DILIGENCE - EXPLANATION OF DELAY - REASONABLE TIME - ORDER XXII, RULE 9, C. P. C. - INTERPRETATION.
Fact of the Case:
The plaintiffs filed a suit for damages against the defendants in December 1966. During the pendency of the suit, one of the plaintiffs, Pashupati Nath Dutt, died intestate in December 1976. His widow and two sons, the present applicants, were unaware of the suit until January 1978. They filed an application for condonation of delay in making the application and for their substitution in place of the deceased plaintiff.
Finding of the Court:
The court held that the applicants had shown sufficient cause for the delay in making the application. It found that they had no knowledge of the suit prior to January 1978 and, therefore, they had no duty to prosecute it diligently. The court also found that the delay in making the application from January 1978 to February 1978 was reasonable.
Issues: 1. Whether the applicants had shown sufficient cause for the delay in making the application for condonation of delay and substitution. 2. Whether the applicants had a duty to prosecute the suit diligently prior to their knowledge of the suit. 3. Whether the delay in making the application from January 1978 to February 1978 was reasonable.
Ratio Decidendi: 1. The court held that "sufficient cause" should be construed reasonably on the basis of the facts of each case. It found that the applicants had no knowledge of the suit prior to January 1978 and, therefore, they had no duty to prosecute it diligently. The court also found that the delay in making the application from January 1978 to February 1978 was reasonable. 2. The court held that there cannot be any duty towards an unknown thing or a person. Negligence presupposes existence of a duty to take care of a thing or a person. If there is no such duty, there cannot be any negligence also.
Final Decision: The court allowed the application for condonation of delay and substitution. It ordered that the suit be amended to reflect the substitution of the applicants in place of the deceased plaintiff.
( 1 ) THIS is an application by the heirs and legal representatives of the deceased Pashupati Nath Dutt, the plaintiff No. 2 in the above suit for condonation of delay in making the application and for their substitution in his place and stead by setting aside abatement of the suit so far ag the deceased plaintiff No. 2 is concerned. The above suit was instituted by the deceased Pashupati along with other co-plaintiffs in December, 1966 against the defendants for recovery of damages of Rs. 4,21,125/-and other reliefs. During the pendency of the suit, on 6th Dec. 1976, Pashupat? died intestate leaving him surviving his widow, 2 sons and 4 daughters. Subsequently the daughters executed a deed of release dated 18th March, 1971 in respect of their shares in their father's estate. The present applicants are the widow and the 2 sons of the deceased Pashupati Nath Dutt.
( 2 ) IN the petition, the applicants alleged that they had no knowledge of this pending suit and for the first time they came to know about this suit from Nripati Nath Dutt, the plaintiff No. 1 herein on 19th Jan. 1978. Due to aforesaid facts no application for substitution could be made earlier. These allegations are made in paras 6, 7 and 8 of the petition. The present application was taken out on 1st Feb. 1978.
( 3 ) THE defendant No. 3 Nishit Kr. Biswas has affirmed the affidavit-in-opposition for self and on behalf oi the other defendants denying the applicant's allegation of knowledge of the suit on 19th Jan, 1978 from Nripati Nath Dutt. The said denial is contained in paras 8 and 9 of the affidavit dated 14th Feb. 1978. It is to be noted that Nishit Kr. has verified the said two paras of his affidavit as "true to his knowledge. " Nishit Kr. cannot have any personal knowledge of any discussion or conversation between the applicants and Nripati concerning the above suit and as such his allegation of personal knowledge as alleged in the said affidavit cannot be accepted as true. The applicants thereafter filed an affidavit of reply on 21st Feb. 1978 reiterating the allegations in the petition. Nripati Nath Dutt also filed a supporting affidavit on 21st Feb. 1978 admitting the applicant's case that they came to know about this suit from Nripati on or about 19th Jan. 1978. The defendants with the leave of court could have filed a supplementary affidavit contradicting Nripati's allegation in his affidavit but no such step was taken by the defendants. The result is that Nripati's said statements are going unchallenged. I therefore, hold that the applicants came to know about the above suit on 19th Jan. 1978.
( 4 ) MR. J. N. Roy learned counsel for the respondents, strongly relies on and submitted that "sufficient cause" should not be liberally construed. He also submitted that mere statement of belated knowledge of the suit on 19th Jan. 1978 as alleged by the applicants was not enough. The applicants will have to explain the circumstances which prevented them from getting the information of the suit earlier and they will have to establish those facts as otherwise they will fail to prove "sufficient cause. " No such facts have been pleaded in the petition. He further submits that unless the delay is explained to the satisfaction of the court in the manner mentioned in the discretion of the court cannot be exercised in favour of the applicants. Mr. Roy strongly relies on head nole fb) at page 216 of Union of India v. Ram Charan, as follows (at p. 219) :--"there is no question of construing the expression 'sufficient cause' liberally either because the party in default is the Government or because the question arises in connection with the impleading of the legal representatives of the deceased respondent. The provisions of the Code are with a view to advance the cause of justice. Of course, the Court, in considering whether the appellant has established sufficient cause for his not continuing the suit in time or for not applying for the setti
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