K. L. SHRIVASTAVA, J.

( 1 ) THIS is an application under O. 22, R. 9 of the Civil P. C. , 1908 (for short 'the Code') for setting aside abatement of appeal. An application under S. 5 of the Limitation Act, 1963 (for short 'the Act') for condonation of delay in filing the application for setting aside abatement of appeal has also been filed.

( 2 ) CIRCUMSTANCES giving rise to the applications are these. Second Appeal No. 389 of 1974 preferred by Chandrashekhar the father of the petitioner Smt. Manorama wife of Jagdish Chandera was dismissed on 17-7-1985 as having abated, the said Chandrashekar having died on 15-1-1985.

( 3 ) THE application for setting aside the abatement was filed on 29-8-1986 and therein it has been stated that Chandrashekar was resident of a village in district Dhar and the applicant resides in Indore and had no earlier knowledge of any case by her father.

( 4 ) IN the application under S. 5 of the Act it has been stated that the petitioner came to know about the abatement on 29-8-1986 and in the circumstances the delay in applying for slitting aside the abatement deserves to be condoned. ( 5 ) THIS Court required the Civil Judge Class I, Dhar to submit his finding on the sufficiency of the cause for the delay. The finding dated 13-2-1989 is against the petitioner.

( 6 ) LEARNED Counsel for the petitioner placing reliance on the observations in paragraph 6 of the decision in Sital Prasad's case, AIR 1985 SC 1 has urged that the delay deserves to be condoned and the application under 0. 22, R. 9 of the Code must be allowed.

( 7 ) THE contention of the learned Counsel for the non-applicant No. 1 is that unless the party seeking condonation of delay under S. 5 of the Act pleads and proves the cause as alleged and its sufficiency, the Court cannot allow the application. In support of his submission he has placed reliance on the decision in Union of India v. Ram Charan, AIR 1964 SC 215.

( 8 ) THE point for consideration is whether the applications deserve to be allowed.

( 9 ) IN the decision in Sital Prasad's case (AIR 1985 SC 1) (supra) one Mehendra Kumar claiming to be the son of the deceased appellant had in 1978 moved the necessary applications including the one for setting aside the abatement, the appellant having died in 1976. The Supreme Court observed that the High Court must examine the material collected by the trial Court and must come to its own conclusion and cannot adopt the approach of a Court exercising revisional jurisdiction. Observing that in a traditional rural family the father may not have informed the son about the litigation and that rules of procedure are designed to advance justice and should be so interpreted and not to make penal statutes for punishing erring parties, and set aside the order passed by the High Court.

( 10 ) IN the decision in Union of India v. Ram Charan (AIR 1985 SC 1) (supra) with reference to O. 22, R. 9 of the Code (which applies appeals it has been pointed out that there is no question of construing the expression 'sufficient cause' liberally. It has, however, been observed that the Court need not be over-strict in accepting such proof of the suggested cause as it would accept for holding certain facts established, one of the reasons being that the question does not relate to the merits of the dispute between the parties. According to the decision this, however, does not mean that the Court should readily accept whatever is alleged to explain away his default. It has to scrutinize the allegation and it would be fully justified in considering the merits of the evidence led to establish the cause for the default in applying within time (90 days from date of death : Art. 120 of the Act) for impleading of the L. Rs. of the deceased or for setting aside the abatement. It has been point out that mere belated knowledge of death of opposite party is not sufficient and reasons leading the not knowing of death within reasonable time must be stated.

( 11 ) LEARNED Counsel for

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