JUDGMENT
John Beaumont, Kt., C.J.
1. This is an appeal from a decision of Mr. Justice Engineer given in chambers, by which he set aside an abatement.
2. The material facts are that the plaint in the suit was declared on June 10, 1936, and the claim as against defendant No. 1 was for payment of a certain share of costs incurred in a suit for which the plaintiffs allege defendant No. 1 was liable to them. Defendant No. 1 died on January 30, 1937, and the plaintiffs were informed of that fact on February 8. They then had ninety days in which to bring the heirs on record under Article 177 of the Indian Limitation Act, and they did not in fact bring the heirs on record within that time. That being so, under Order XXII, Rule 4, the suit abated.
3. By Rule 9(1) it is provided that where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action. Sub-rule (2) provides that if it is proved that the plaintiff was prevented by any sufficient cause from bringing the heirs on record within the requisite time, the Court shall set aside the abatement. On June 28, 1937, a summons was taken out, asking to have the abatement set aside, and on that summons the learned Judge made the order from which this appeal is brought.
4. A preliminary point is taken that no appeal lies since the order is not a judgment within Clause 15 of the Letters Patent. We were referred to a decision of the Court of Appeal in Calcutta in Sarat Chandra Sarkar v. Maihar Stone and Line Co.,
Ld. (1921) I.L.R. 49 Cal. 62 in which it was held that an order setting aside an abatement of a suit is a ” judgment” under Clause 15 of the Letters Patent and is appealable. That is a decision directly in point in favour of the view that it is a judgment. On the other hand, in Maharaj Kishore Khanna v. Khan Shashi Dasi (1921) I.L.R. 49 Cal. 616 the same Court held that no appeal lies from an order under Order IX, Rule 9, of the Civil Procedure Code, restoring a suit. It is difficult to see any distinction in principle between an order restoring a suit under Order IX, Rule 9, and an order setting aside an abatement under Order XXII, Rule 9, which has the effect of restoring the suit. If the one order is a judgment within Clause 15 of the Letters Patent, I think the other must be also. The question as to what is a judgment within Clause 15 has been discussed in a great many cases in this and other Courts, and we generally go back to the classical definition in The Justices of the Peace for Calcutta v. The Oriental Gas Company (1872) 8 Beng. L.R. 433 that ” judgment” means a decision which affects the merits of the question between the parties by determining some right or liability. An order setting aside an abatement does not affect the merits of the dispute between the parties, though it certainly determines a right, because in the absence of such order the plaintiff is debarred from suing the defendant for the amount claimed. The order is really one in procedure. The plaintiffs originally had a cause of action which through no fault of their own came to an end by the death of their opponent, and the effect of setting aside the abatement is merely to excuse delay in restoring the suit to an actionable condition. There is one point which was not referred to in the Calcutta Court, and which is of very considerable importance on this question, and that is the effect of Order XLIII, Rule 1. That Order provides that an appeal shall lie from certain specified orders under the provisions of Section 104 of the Code, and amongst those, orders is (k) an order under Rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit. So that in the case of an order refusing to set aside the abatement, the effect of which is finally to dispose of the suit, an appeal lies. But on the other hand, against an order which sets aside the abatement and thereby allows the suit to go on, no appeal lies. It would certainly be anomalous to hold that no appeal lies under the Code from an ordef setting aside an abatement, but that such an appeal does lie where the order is made by a Judge of the High Court in the exercise of its original jurisdiction. It is undesirable to create such an anomaly, and in my judgment we ought to hold that no appeal lies from an order setting aside an abatement under Order XXII, Rule 9, of the Civil Procedure Code.
5. On the merits, I will only say that I much doubt whether the evidence satisfactorily explains the delay in bringing the heirs on record, or shows sufficient cause for setting aside the abatement. Rules as to time are not to be lightly disregarded. However, that point does not really arise.
6. The appeal must be dismissed with costs.
B.J. Wadia, J.
7. I agree on the preliminary objection that no appeal lies against the order setting aside the abatement, and have nothing further to add.
8. I am of opinion that in setting aside the abatement plaintiffs were prevented by sufficient cause within the period of the ninety days allowed by Article 177 of the Indian Limitation Act, which period expired about May 1, 1937, from bringing the legal representatives of the original 1st defendant on record. The Court has a discretion to excuse the delay, which discretion of course must be judicially exercised. In exercising the discretion the Court should construe the words ” sufficient cause “, appearing in Section 5 of the Indian Limitation Act, liberally. The Court should also allow some latitude when the deceased was domiciled in a Native State, or in a foreign place like Goa as in this case, as it is often difficult to ascertain what exactly the law of the place is according to which the legal representatives have to be brought on the record, and to find out who they are. Ignorance of the legal representatives of a deceased domiciled in a Native State or a foreign place may be a sufficient cause for excusing the delay, unless there is clear negligence or carelessness or unnecessary delay. Want of care and attention or want of due diligence negatives the existence of sufficient cause. Each case must, however, depend on its own facts and circumstances. I am not satisfied that there is evidence of such carelessness on the affidavits. Plaintiffs may have been somewhat slack in making their enquiries, but it cannot be said that they made no enquiries whatsoever. It is true that the affidavit in rejoinder is silent as to some dates, especially the date on which the plaintiffs sent their clerk Desai to Goa to make the necessary enquiries. The letter of May 7, 1937, however, refers to the fact that the clerk had been sent to Goa, and that he had returned without completing his enquiries, as he got fever whilst he was in Goa. Possibly another Chamber Judge may in the first instance have taken a different view, but sitting in appeal I do not wish to interfere with the discretion exercised by the learned Judge, if I am satisfied that it has been exercised, as it must have been, after considering all the facts and circumstances of the case. The mere fact that there is no judgment here giving reasons for the ” sufficient cause ” does not in my opinion show that that discretion has not been judicially exercised. I would therefore on both grounds dismiss this appeal with costs.
