The central legal point established in the judgment is the need for a liberal construction of 'sufficient cause' under Section 5 of the Indian Limitation Act to advance substantial justice.

JUDGMENT

Harries, C.J. - This is an appeal from an order of Banerjee J, dated November 23, 1948, setting aside an abatement.

2. The two plaintiffs brought a suit against Sm. Fuleswari Bhadra claiming a declaration that they had certain rights of light and air and an injunction restraining the defendant, her servants or agents from obstructing or interfering with these rights. There was also a claim for a declaration as to a right of way and an injunction restraining the defendant from interfering with such right.

3. The suit proceeded, but eventually it became known to the plaintiffs that Sm. Fuleswari Bhadra had died and the solicitors of the plaintiffs wrote to the defendant's solicitors asking them for information as to who were the personal representatives. No satisfactory reply was obtained, and eventually certain records were searched in this Court and it was discovered on August 23, 1948, that the lady had left a will naming Ashutosh Bhadra and Bejoy Kumar Bhadra as executors. They were therefore the proper persons to be substituted in place of the deceased defendant. It appears that the defendant actually died on April 9, 1948.

4. It is therefore quite clear that on August 23, 1948 the plaintiffs through their solicitors obtained the information that the proper persons to be substituted were the two executors However, no immediate steps were taken by the plaintiffs and an application for substitution was not made until September 21, 1948.

5. The ninety days from the date of death had long since elapsed and the sixty days given to a party to apply to set aside the abatement expired on September 5, 1948. It is clear therefore that if the plaintiffs' attorneys had taken immediate steps an application for setting aside the abatement could have been made within the sixty days However, as I have said, it was not made within the sixty days and was not actually filed until. September 21, 1948, that is, fifteen days after the period of sixty days had expired.

6. The plaintiffs explain the delay by saying that the conduct of the suit was in the hands of the male plaintiff Jatindra Mohan Seal and that he suffered from gout or some such other ailment, which required, that he should live away from Calcutta at Puri. There was an affidavit of a medical man which would suggest that Jatindra Mohan Seal could not live in Calcutta, but had to live away from the city. It was, however, admitted that in the beginning of August Jatindra Mohan Seal had come to Calcutta for some wedding festivities; but it is said on behalf of the plaintiffs that owing to his physical condition he had to leave within a week, which should suggest that he had left Calcutta before August 23 when the search in the Court disclosed who were the personal representatives of the deceased. It was very rightly pointed out that it is not definitely stated in the affidavit that the male plaintiff was not in Calcutta when the search took place. But I think it can be reasonably inferred from all the facts that he had left early in August for Puri and that he was not here in this city on August 23.

7. The question which has to be determined is whether there is a reasonable explanation for the delay which took place in making this application. In other words, was there sufficient cause for not preferring this application to set aside the abatement within the period of sixty days?

8. It was not suggested that the plaintiff was really at fault until August 23. It was mildly suggested at one time that the female plaintiff might have known of the death of the defendant, but it was not seriously argued that much could have been done before August 23. The real case for the defendants was that no sufficient cause had been shown for the delay of fifteen days or so from the expiry of the sixty days until this application was filed.

9. I must confess that this is a border line case; but on the whole I am satisfied that there was material upon which the learned Judge could exercise his discretion