V. S. Deshpande, J.

( 1 ) A question of first impression regarding the construction of section 5 of the Limitation Act arises in this appeal on the following facts.

( 2 ) THE suit of the Respondent No. 1 landlord for arrears of rent against his tenant Banarsi Das was decreed by Sub Judge First Class, Delhi. During the pendency of the first appeal tiled by Banarsi Das, the said Banarsi Das died on 15th July, 1968. One of his legal representatives, namely, his son Shri Ram, made an application on 23rd November, 1968 for being brought on record as the legal representative of the deceased. This application was deliberately vague. It did not even mention the date of the death of Banarsi Das. As it was filed beyond the prescribed period of limitation, no action could be taken on it. On 7th December, 1968 another application was made by two other legal representatives, namely, Shri Dhani Ram and Smt. Shanti Devi, for being brought on record in place of the deceased Banarsi Das under Order XXII rule 3 read with rule 11 Civil Procedure Code. An application under section 5 of the Limitation Act was also made for extension of the prescribed period of limitation for setting aside the abatement of the appeal. The only reason given for the delay in making the application was that the applicants had no knowledge about the pendency of the appeal and that they came to know of it only a day before the application was filed. The application was dismissed by the first appellate Court on the ground that the applicants knew about the death of Banarsi Das when he died, and, therefore, there was no sufficient cause for extending the prescribed period of limitation under section 5 of the Limitation Act. He, therefore, held that the appeal had abated and as the abatement was not being set aside, the decree of the trial Court stood. The appeal was also dismissed as having abated.

( 3 ) IN this second appeal, the main ground on which the first appellate judgment is attacked is that on evidence adduced before the first appellate Court it should have been held that the applicants legal representatives Dhani Ram and Shanti Devi did not know aboat the pendency of the appeal and this was a sufficient cause why their application for setting aside the abatgment of the appeal was delyed within the meaning of section 5 of the Limitation Act. The Respondent No. 1 has filed cross-objections only for costs.

( 4 ) ASSUMING that Dhani Ram and Shanti Devi did not know about the pendency of the appeal which had been filed by the deceased Banarsi Das and that they came to know of it after the appeal had abated and only a day before the application for the setting aside of the abatement was made by Dhani Ram and Shanti Devi, the question is whether this constitutes sufficient cause for not perferring the application" within the meaning of section 5 of the Limitation Act.

( 5 ) THE scheme of the relevant sections in Parts II and III of the Limitation Act which respectively deal with limitation of suits, appeals and applications, and computation of period of limitation may be described as follows. According to section 9, once the time, i. e. , the period of limitation prescribed by the Act, begins so run, no subsequent disability or mability to institute a suit or make an application can stop the running of time. But before the time begins to run certain causes may prevent the starting of the running of the period of limitation itself. Such causes are legal disablity (sections 6 to 8), death of the person entitled to sue or make an application before the right to sue or apply accrued to him and the time that is to elapse till there is a legal representative of the deceased person capable of instituting the suit or making the application (section 16) and the effect of fraud or mistake (section 17 ). The relevant part of section 17 reads as follows :-

"17. Effect of fraud or mistake. (1) Where, in the case of any suit or application for which a period of limitation is prescri

Click Here to Read the rest of this document