P L D 1960 (W (PLP)

S. M. Sohail for Defendants. Date of hearing: 8th February, 1960. The plaintiff Haji Abdul Shakoor son of Haji Ali Muhammad had entered into a contract with the defendants Messrs K. B. H. M. Habibullah & Co. for the purchase of one lac yards of Japanese white shirting and had paid a deposit of Rs. 1,8,633 to the defendants in respect of this contract. The plaintiff claimed that the defendants had committed breach of contract and that he was, therefore, entitled to the refund of the deposit of Rs. 18,633 with interest thereon. The defendants denied the plaintiff's claim and asserted that it was the plaintiff who was guilty of the breach and upon that ground they made a counter claim against the plaintiff for damages in the sum of Rs. 47,913/14/0. The suit came up for hearing before Wahiduddin, J., on 20th August 1959, when Mr. A. Aziz, counsel for the plaintiff, stated that the plaintiff died about a year back and that no legal representative had been brought on record. On that statement the learned Judge ordered that the suit had abated. With regard however to the counter claim Mr. Sohail, the counsel for the defendants, stated that they were not aware about the death of the plaintiff and that he should be allowed to make an application for the setting aside of the abatement. An application under Order XXII, rule 9, C. P. C. read with section 5 of the Limitation Act was filed on behalf of the defendants on 28th August 1959, for the setting aside of the abatement and in that application the names of the legal representatives of the deceased were furnished. These are, the widow of the deceased, one major daughter of 18 years and two other minor daughters and four minor sons between the ages of 14 years and 2 years. This application is supported by the affidavit of an employee of the defendants' firm and the grounds for setting aside the abatement and for condoning the delay given in that affidavit are, that neither the defendants knew about the death of the plaintiff nor they had any reason to suspect about it and that the case at several times had come up before the Court but the fact of the death of the plaintiff had not been made known. It was further stated that the plaintiff belonged to the Memon community whereas the defendants belonged to Pracha community and that they had nothing in common from which they could come to know about the plaintiff's death. It was also stated that the business of the plaintiff under the name arid style of Karachi Trading Company 'was still going on in the same premises and that therefore the, defendants had no reason to suspect the death of the plaintiff. A counter affidavit has been filed on behalf of the proposed legal representatives of the deceased in which it is stated that the plaintiff Haji Abdul Shakoor died on 16‑10‑58 and being a very prominent business man and office bearer of various institu tions such as the Karachi yarn Merchants' Association and Pakistan Merchants' Association his death was widely publicised in various papers such as `Dawn', `Millat' and `Leader' of Karachi in their issues of 16th, 17th & 18th of October 1958. The issue of the `Leader', which is an evening paper of 17th October, has been produced in which the photograph of the deceased appears prominently giving a resume of his various social and commercial activities and his association with various institutions and organizations. In the issue of the `Dawn' of 16th prominently appears the news of Haji Abdul Shakoor's death in the form of obituary. Again in the `Dawn' of 18th there appeared in the column of Karachi news the fact of the death of the deceased having been condoled by various commercial and social organiza tions. It is therefore urged on behalf of the proposed legal representatives of the deceased that the fact of the death of the plaintiff was so widely publicised that there is no room left for the defendants to say with any justification that they were not aware of the death of the plaintiff or that such an ignorance could be an adequate ground for setting aside of the abatement on an application which has been made about 10 months after the demise of the plaintiff. Order XXII, rule 9 (2) enables the plaintiff to apply for the setting aside of the abatement or dismissal of the suit (which includes a counter claim) and reads as follows:‑ "The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the assignee or the receiver in the case of an insolvent plaintiff may apply for an order to set aside the abatement or dismissal; and if it is proved that he was prevented by any sufficient cause from continuing the suit, the Court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit." Sub‑rule (3) makes section 5 of the Limitation Act applicable to applications under sub‑rule (2). It would be noted that the words used are that if it is proved that the plaintiff was prevented by any sufficient cause from continuing the suit, the Court shall set aside the abatement. It must therefore be examined whether in the present case it has been proved that the plaintiff was prevented by any sufficient cause. An abatement is not set aside as a matter of course or lightly. This is because, on the abatement having taken place a valuable right vests into the defendant and he is not to be deprived of it unless sufficient cause is shown. What is a sufficient cause must depend upon the fact of each particular case. The ignorance of the death of the deceased or of the whereabouts of the legal representatives of the deceased may in some cases having regard to the circumstances thereof be a good ground for excusing the delay, but it cannot be said that ignorance of the defendant is by itself an adequate ground There is a duty cast upon a plaintiff to prosecute his case with due diligence and if in the circumstances of a particular case it appears that the plaintiff had the means of knowing about the death of the defendant or should have with ordinary care been able to know of it in good time then in such cases his ignorance would not amount to a sufficient cause preventing him from continuing the suit. In the present case, the defendant do belong to the business community and they carry on their place of business at Marriot Road which is not very far from the place of business of the deceased plaintiff which was situated at the Gowardhandas Market, Karachi. It cannot be said that the fact of the death of the plaintiff Haji Abdul Shakoor was suppressed in this case in a manner as to make it difficult for the defendants to know about it. That the plaintiff was a business‑man enjoying a position of some prominence in the business community appears apart from the publicity given to his death in the press, also from the counter affidavit filed on behalf of the legal representatives which statements have not been controverted by the defendants. For the defendants to be ignorant of the death of the plaintiff in these circumstances amounts to the absence of that care with which a claimant has to observe in continuing his claim. There is another important factor which must be noted. The affidavit in support of the application for setting aside the abate ment and for condoning the delay has been sworn not by any partner of the defendants but only by one of their employees. It has been contended on behalf of the legal representatives and with some force that if Khan Bahadur H. M. Habibullah or any other partner of the firm had sworn the affidavit it would have been possible to demonstrate by cross‑examination that either they had the knowledge of the death of the plaintiff or in any case had ample opportunity and means of knowing it in the circum stances of this case. It is also pointed out that the deceased plaintiff left behind him a widow and seven children, six of whom were minors and only one girl was just about major and it may will be that these persons because of their ages and position and because of their grief did not come forward in time to inform the Court about the death of the plaintiff. Be that as it may, it is for the defendants (who have made the counter claim and are in the position of the plaintiff for that purpose) to show that they were prevented by sufficient cause from continuing their counter claim. Having regard to the circumstances of the case stated above I am clearly of the opinion that they were not so prevented by the fact of the late information given on behalf of the legal representatives of the deceased. It is for the plaintiff to follow his action with due diligence and it is not for the opposite party to assist him in that process. For the reasons given above, I hold that the defendants, who must be treated as plaintiff for the purpose of this application, have failed to show any sufficient cause for making the application after such a long lapse of time. This is not a fit case for condoning delay under section 5 of the Limitation Act. I do not therefore think that this is a fit case for the setting aside of the abatement of the counter claim. I, therefore, dismiss this application with costs. The result is that the counter claim stands abated. K.M.A. Application dismissed.