P L D 1962 (W (PLP)

2: The suit giving rise to the present appeal was heard by this Court and evidence of the parties closed on 30th of January 1960. During the course of the argument on 28th April, 1960 Mr. Haleem, the learned Advocate for the defendants 3 and 4, con tended that as Mst. Khadijabai had died in 1957 and her legal representatives were not brought on the record, the suit had abated. The matter was adjourned.

3. On May 7, 1960 an application under Order XXII, rule 9, C. P. C., was made to bring the L. Rs. of Mst. Khadijabai on record of the case. Defendant No. 3 opposed the application on the ground that Mst. Khadijabai had died on 30th December 1957 and that this fact was within the knowledge of the plaintiff. Notice of her death was served on Mr. Samad, the learned Advo cate for plaintiff in Suit No. 80 of 1950. On the basis of this it was contended that the plaintiff being negligent in bringing the J. Rs. of the deceased Mst. Khadija on record, the application should be dismissed.

4. A rejoinder was filed on behalf of the Sind Industrial Estates on the 11th May 1960 stating that they had no knowledge about the death of Mst. Khadijabai on 28th April, 1960 when Mr. Muhammad Haleem the learned Advocate for the defendants 3 and 4, disclosed the fact about the death of Mst. Khadijabai.

5. Mr. Samad, the learned Advocate for the respondent took a preliminary objection that no appeal lay. The learned Advocate contended that an order setting aside the abatement is not appealable as it does not amount to a judgment under clause 10 of the Letters Patent. In support of his contention reliance was placed on Saleh Muhammad Haji Haroon Kably v. Muhammad Tahir Jaffrani (A I R 1958 Bom. 210). On the other hand, Mr. Lari, the learned Advocate for the appellant, relied on a number of authorities namely T. V. Tuljaram Row v. M. K. R. V. Alagappa Chettiar (I L R 35 Mad. 1), Ruldu Singh v. Sanwal Singh (I L R 3 Lah. 188), Firm Shaw Hari Dial & Sons v. M/s. Sohanmal Bell Ram (A I R 1942 Lah. 95) Shakoor Hasham Patel v. Muhammad Hasain Shakoor (P L D 1957 Kar. 435) and Fida Hussain v. M/s. Queens land Insurance Co. Ltd. (P L D 1959 Kar. 216) in support of his contention that the order setting aside the abatement is a judgment within the mean ing of clause 10 of the Letters Patent. We would hold that the order finally decides the question of abatement and is appealable, under clause 10 of the Letters Patent.

6. Mr. Lari very strenuously contended that the affidavit and the rejoinder filed on behalf of the respondent Industrial Trading Estates do not comply with rule 57 of the Sind Chief Court (Original Side) Rules (hereinafter called the Rules) which is still applicable to the Original Side proceedings of this Court. Rule 57 requires that every affidavit shall express clearly how much is a statement of the deponent's own knowledge and how much is a statement on his information or belief, and shall also state the source or grounds of the information or belief with sufficient particularity. It has not been contended by Mr. Samad that the affidavits conform to the Original Side Rules of the Sind Chief Court. Under rule 69 of the Rules, an affidavit not sworn or armed in the manner provided under rule 57 shall not be used in evidence. The objection as to the defective affidavit and the rejoinder has been taken for the first time at the time of argument. If this objection had been taken earlier in the counter‑affidavit, the respondent would have complied with rule 57 of the said Chief Court (O. S.) Rules, and at any rate would not have repeated this mistake in the rejoinder. It was open to the Court to allow the respondent in the interest of justice on payment of costs to file a fresh affidavit and rejoinder comply ing with the form prescribed by the rules. This Court has ample power even now, as the objection has been taken for the first time at the time of arguments, to allow the respondent to file fresh affidavits in conformity with rule

57. However, as no useful purpose could be served by adjournment of the matter in order to enable the respondent to file fresh affidavits, the matter has proceeded on the basis of the affidavits on the record. It may be mentioned that it does not appear from the judgment of Qadeer uddin, J. that this point was urged before him. It is, to our mind, too late now to urge that the counter‑affidavit and the rejoinder, being defective in form, should be rejected.

7. Mr. Samad at the bar had stated before the learned single Judge that he had received the notice of the death of Mat. Khadijabai in an earlier suit in which the respondent was also a party.

8. Mr. Lari contended that a party to the suit is under an obligation to keep in touch with the other party. The burden to explain the delay in making an application for bringing the L. Rs. on the record within the time prescribed is on the plaintiff‑ respondent. It was contended that the plaintiff-respondent has failed to discharge the burden placed on him. Mr. Lari in support of his contention that it is the duty of the plaintiff respondent to satisfy the Court that it had not been negligent and bad been prosecuting the case with due diligence and care, relied on the case of Punjab Province v. Sultan Khan and others (P L D 1959 Lah. 500), Abdul Shakoor v. M/s. K. It. H. M. Habibullah & Company (P L D 1960 Kar. 417) and Muhammad Jahankhan Chandio v. Muhammad Murad and others (P L D 1958 Kar. 229). A persual of these cases would establish three propositions, namely: (1) that no hard and fast rule can be laid down as to the circumstances under which the Court can hold that the plaintiff had been able to make out "sufficient cause" within the meaning of the provision of Order XXII, rule 9 C. P. C. (2) that if the plaintiff can satisfy the Court that in the circumstances of his case he could not have known of the death of his opponent and there was no negligence or want of dili gence on his part it would be sufficient cause ; (3) that the expression "sufficient cause should be liberally construed so as to advance substantial justice." Keeping these facts in view, the question is whether the plaintiff respondent could not have known of the death of Mst. Khadijabai and there was no negligence or want of diligence on his part. The plaintiff is a Company incorporated under the Companies Act, 1930. The object of the Company is to establish an Industrial Trading Estate. The plaintiff as such has no concern with the defendants most of whom are residing in the village in dispute. Mst. Khadijabai deceased, wife of Umedali Shah, resided in Sher Shah village. it has been alleged in the affidavit that the plaintiff was not aware of the exact whereabouts of the deceased Mst. Khadijabai, and that "women living in Sher Shah village have always taken shelter behind the purdah nishin making it impossible for the plaintiffs to discover anything from them or about them." It is further stated in the affidavit on behalf of the plaintiff that the defendants "and at their instigation, the residents of Sher Shah village have all been in league against the plaintiffs throughout, and have always used their utmost endeavour to thwart and obstruct the plaintiff in every way." It has been alleged in the affidavit that the plaintiff was absolutely unaware of the death of Mst. Khadijabai. In respect of the facts disclosed in the affidavit on behalf of the plaintiff it is useful to reproduce the observations of Qadeeruddin, J.:‑ "The facts stated in these paragraphs of the Secretary's affidavit clearly constitute a cause sufficient, in view of the principle stated above, to have prevented the plaintiffs from continuing the suit against the heirs, and from applying within time to get the abatement set aside excepting for the informa tion conveyed to Mr. Samad Khan by the service on him of a notice in the previous suit of the death of Khadija Bal. Mr. Lari for the defendants has, therefore, not questioned the facts stated in these paragraphs or their sufficiency, but has elaborate ly, argued that counsel's knowledge should be taken to be the actual or constructive knowledge of his clients whose negligence is, therefore, proved by their omission itself to apply within time for impleading her legal representatives and for getting the abatement set aside." It would appear from the above that the facts disclosed by the plaintiff have been admitted. If so, it would amount to sufficient cause within the meaning of Order XXII, rule 9, C. P. C., and section 5 of the Limitation Act. It has, however, been contended on behalf of the defendants that Mr. Samad, the learned Advocate for the plaintiff, had been informed in Suit No. 80 of 1950 about the death of Mst. Khadijabai on the 30th December 1957. In that suit, as already mentioned, the plaintiff‑respondent was one of the defendants. It is admitted by Mr. Samad that he had received the notice of the application under Order XXII, rule 4, C. P. C., in Suit No. 80 of 1950. He however stated that he did not inform his client. Mr. Samad presumably did not inform his client because the death of Mst. Khadijabai, who was one of the co defendants with his clients, was not material so far as the interest of the latter was concerned. The notice of the application under Order XXII, Rule 4, C. P. C. in that case must have been served on Mr. Samad in the usual way. There is no reason to disbelieve Mr. Samad that he did not inform his client about the application under Order XXII, rule 4, C. P. C. Mr. Lad, however, contended that the knowledge of the counsel Is that of the party whom he represents. In this connection he relied on Order III, rule 5 C. P. C. Order III, rule 5 lays down that "any process served on the pleader of any party or left at the office or ordinary residence of such pleader, and whether the same is for the personal appearance of the party or not, shall be presumed to be duly communi cated and made known to the party whom the pleader represents, and, unless the Court otherwise directs, shall be as effectual for all purposes as If the same had been given to or served on the party in person." It was contended by Mr. Lari that the pre -sumption under rule 5 Order III, was irrebutable. He relied on the case of Jugal Kishore Acharyya and others v. Kapil Chandra Acharyya (A I R 1934 Pat, 592) in support of his contention. We do not think that the presumption under Rule 5 Order III is irrebutable. "Shall presume" is defined under section 4 of the Evidence Act as "When ever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved unless and until it is disproved." "Shall presume" has to be distinguished from "conclusive proof" as defined In the Evidence Act. In cases in which a Court shall presume a fact, the presumption is not conclusive but rebutable. Moreover, the presumption under Order III, rule 5 of the C. P. C. can arise only in the suit in which such a notice is given. The presumption under Order III, rule 5, C. P. C., cannot be extended to the proceeding of another suit. In the present case, we do not see any reason to disbelieve the Secretary of the plaintiff that he had no knowledge of the death of Mst. Khadijabai. We would in these circumstances hold that the presumption under Order III. Rule 5 does not arise that the respondent had knowledge about the death of Mst. Khadijabai.

9. Where a party has been able to make out sufficient cause within the meaning of section 5 of the Limitation Act is a question of inference to be drawn from the proved facts and circumstances of each case. An appellate Court will be slow to interfere with the conclusion drawn by a Single Judge in respect of an application under section 5 of the Limitation Act. It has been held in the case of Hanuman Das v. Pirthvi Nath and others (A I R 1956 All. 677) that there is always room for an honest difference of opinion as to whether a certain set of facts amounts to sufficient cause or not within the meaning of section 5 of the Limitation Act. The Courts below must have the discretion to decide the question for themselves and unless the Court below travels beyond the limits within which dis cretion may be reasonably exercised, the appellate Court will not interfere in appeal.

10. In the present case from what we have observed above it would appear that carelessness, if any, was intentional. More over it has not been suggested that it is not a fit case in which costs will not compensate the other side. So far as the respondent is concerned, the learned Advocate Mr. Samad submitted that his clients were prepared to pay the costs in order to compensate the delay that has been caused in the disposal of the suit. We think in the circumstances of the present case the ends of justice would be met if the application under Order XXII, Rule 9 of the Civil Procedure Code is granted on condition that the respondent No. 1 is ordered to pay a sum of Rs. 1,000 as costs to the appellant.

11. We would dismiss the appeal with this modification that the respondent No. 1 is to pay a sum of Rs. 1,000 as costs in order to compensate the appellant for the delay in the disposal of the suit. In the circumstances of the present case the parties to bear the costs of this appeal. A. H. Order accordingly.