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TMI Blog1949 (8) TMI 16X X X X Extracts X X X X X X X X Extracts X X X X ..... uch right. 3. The suit proceeded, but eventually it became known to the plaintiffs that Sm. Fuleswari Bhadra had died and the solicitors of the plaintiffs wrote to the defendant's solicitors asking them for information as to who were the personal representatives. No satisfactory reply was obtained, and eventually certain records were searched in this Court and it was discovered on August 23, 1948, that the lady had left a will naming Ashutosh Bhadra and Bejoy Kumar Bhadra as executors. They were therefore the proper persons to be substituted in place of the deceased defendant. It appears that the defendant actually died on April 9, 1948. 4. It is therefore quite clear that on August 23, 1948 the plaintiffs through their solicitors obt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were the personal representatives of the deceased. It was very rightly pointed out that it is not definitely stated in the affidavit that the male plaintiff was not in Calcutta when the search took place. But I think it can be reasonably inferred from all the facts that he had left early in August for Puri and that he was not here in this city on August 23. 7. The question which has to be determined is whether there is a reasonable explanation for the delay which took place in making this application. In other words, was there sufficient cause for not preferring this application to set aside the abatement within the period of sixty days? 8. It was not suggested that the plaintiff was really at fault until August 23. It was mildly suggeste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... good ground for the application in favour of the would-be appellant of the provisions of Section 5 of the Indian Limitation Act. In the judgment of Banerji, J. it was observed: "Under Section 5 of the Limitation Act, a petition of appeal may be admitted after the expiry of limitation, if sufficient cause is established to the satisfaction of the Court. What con-stitutes sufficient cause cannot be laid down by hard and fast rules. The sufficient cause must be determined on a reference to circumstances of each case. In my opinion, the expression 'sufficient cause' should be liberally construed so as to advance substantial justice". 10. This does not mean that the Court will excuse inordinate delay, but it appears to me t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n with an application under Section 5 of the Limitation Act should not be lightly interfered with, I am of opinion that the delay of 17 or 18 days, under the circumstances aforesaid, is not one that can be considered as unreasonable; or, in other words, I am not satisfied that, in point of fact, there was any want of diligence on the part of the Appellant in preferring the appeal." 12. I am only referring to this case for Mukerji J.'s observation that the standard to be applied should not be too exacting. In the present case I am satisfied that the male plaintiff who had the conduct of the case was in Puri. Communication even by post is not too rapid these days and I think some time would have to be allowed to the solicitors to de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appears that the plaintiffs had their constituted attorney in Calcutta and one of the plaintiffs was in Calcutta. 17. It is also to be observed that in the petition no facts were alleged showing any diligence on the part of the plaintiffs after August 23, 1948. It was for the first time alleged in the affidavit in reply that Jatindra went away to Puri after a week's stay in August and that he returned to Calcutta on October 4, 1948. Even in the affidavit in reply no attempt was made to explain how Jatindra's absence from Calcutta was responsible for the delay in making an application. The application was in fact made when Jatindra was still absent from Calcutta, the affidavit in support of the application being affirmed by the con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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