Madam, J.
1. This appeal (being directed against the impugned order dt. 19.8.1997 passed by Additional District Judge No. 1, Jaipur City in Misc. Case No. 23/89 declining grant of temporary injunction in favour of the plaintiff in his suit for specific performance of an agreement to sell), has come up before this Court for orders on the application dt. 4.12.2000 of the plaintiff appellant moved under Order 22 Rules 4 & 9 r/w Section 151 CPC, which has been filed being time barred with 450 days delay from the date of expiry of the sole respondent Chauthmal who admittedly died on 23.9.1999 as per death certificate Ann.A.
2. Facts in details are not stated as this order will dispose of only the applications of the parties. However, the facts in narrow compass are epitomised that the appellant plaintiff, a housing cooperative society is said to have entered into an agreement to buy an agricultural land of khatedar Chauthmal (respondent herein) situated in village Sukhalpura Teh. Sanganer of Khasra No. 9 measuring 20 bighas under an agreement dt. 4.12.1979 by paying a sum of Rs. 1100/- followed by another payment of Rs. 139075/-against sale consideration on 10.8.1980 with a remainder sale consideration of Rs. 123820/- payable at the time of registry. For specific performance of aforesaid agreement to sell the plaintiff society (appellant) instituted a suit in which a temporary injunction was sought by the society and counter claim was also filed for temporary injunction by defendant Chauthmal but, the trial Court after hearing both the parties declined to grant temporary injunction. Hence, this appeal.
3. During the pendency of this misc appeal, respondent- defendant Chauthmal died on-23.9.99 but his legal representatives were not brought on record withirt the prescribed limitation period of 90 days and application for bringing legal represen-ta-tives of Chauthmal has been filed after 450 days i.e. on 4.12.2000 under Order 22 Rule 4 & 9 CPC; in reply to which, Shri R.K. Agrawal, learned counsel appearing on behalf of Kailash one of legal representatives of defendant Chauthmal filed an applica-tion dt. 16.1.2001 praying therein for rejecting application of the plaintiff appellant and to treat the misc appeal itself abated under Order 22 Rules 4 CPC. Factum of death of respondent Chauthmal on 23.9.1999 was not disputed but the facts stated in para 10 of appellant's application of having knowledge as to the pendency of appeal came on 6.11.2000 when Shri Saket Pareek, Advocate telephoned the society to make payment of his balance fee, were denied, and in reply to para 11 by not admitting in the manner stated it has been urged by Shri Agrawal that the appellant society admittedly had knowledge of the death of respondent Chauthmal as per the averments made in para 11, rather the appellant society having obtained ad-interim stay order of status quo had indulged in causing delay in service of the notices in this appeal alongwith the stay petition and in this view of the matter the delay in making the present application for bringing on record the legal representatives of respondent Chauthmal was not condonable.
4. Application under Section 5 of the Limitation Act for condonation of delay of 450 days in moving the application under Order 22 Rules 4 & 9 C.P.C. by the appellant was also filed on 4.12.2000 which was accompanied by affidavit of one Gopal Saini President of the society appellant and that of Saket Pareek Advocate, reply to which was also filed by Shri RK Agrawal on behalf of Kailash U/R of Chauthmal).
5. During the course of arguments, Shri G.L. Pareek for the appellant (applicant) reiterating the averments made in the application for bringing the L/R of Chauthmal on record contended that since the appeal was filed by one Tulsiram son of Gangaram Saini the then Secretary of the Society became disinterested in the work of society handed over the documents and file of the litigations in the society's office and it was on 6.11.2000 when the appellant society came to know as to the pendency of the present misc appeal upon telephone by Shri Saket Pareek to one Dharamchand Saini to make payment of his balance fees and at that time Dharamchand Saini informed as to the death of Chauthmal, inasmuch as the society had already brought L/Rs of Chauthmal on record in suit proceedings before the trial Court in due time. Hence, as per Shri Pareek, the delay has occasioned on account of ignorance of having knowledge of pendency of this misc appeal, in filing the present application for bringing L/Rs of deceased Chauthmal.
6. Shri G.L. Pareek placed reliance upon the decision of the Apex Court in OP Kathpalia v. Lakhmir Singh (1) and UIT Jodhpur v. Gokulnarain (2).
7. Contrarily, Shri R.K. Agrawal while reiterating the contentions raised in reply to the application at hand contended that the story of belated knowledge as to the pendency of the appeal itself, and appellant's posing ignorance is not applicable to any prudent man legally advised specially when, in para 11 of the application it stands admitted fact that the appellant had knowledge of death of respondent long back when his L/Rs were brought on record in suit proceedings before the trial Court. According to Shri Agrawal the story (supra) made by the appellant is totally fabricated under the garb of telephonic information reminding one Dharamchand Saini for payment of balance fees in appeal to the Advocate Shri Saket Pareek. He cited the decisions in Union of India v. Ramcharan (3), Rangubai v. Sunderbai (4) and Sankaran Pillai v. V.P. Venuguduswami (5).
8. Having considered the rival contentions of the learned counsel for the parties, in my considered opinion the story posing ignorance as to the pendency of this appeal to anyone of the appellant Society is totally fabricated engineered and not sustainable in law in the facts & circumstances of the case.
9. It is pertinent to mention herein that this appeal was filed alongwith the stay. petition and affidavit in support thereof of one Shri Tufsiram son of Gangaram Saini and that apart the application for temporary injunction was moved by the appellant Society through Shri Dharamchand Saini who was said to be Secretary of the Society as is apparent from the title of Misc. Case No. 23/89 before the trial Court under the impugned order. Similarly, as is apparent from Vakalatnama, Gopal Saini describing himself as son of Gangaram Saini and President of appellant Society has signed the power in favour of Advocate Shri Saket Pareek to represent in the appeal. That apart in all the affidavits either in support of stay petition or the application under Order. 22 Rules 4 & 9 CPC or the application under Section 5 of the Limitation Act, the deponents' father's name has been described as Gangaram Saini meaning thereby, President or the Secretary of the Society appellant are from one and the same family, even Tulsiram Saini in his affidavit in support of stay petition described himself as son of Gangaram Saini. If the averments in the applications are carefully scanned then, it stands certainly established that Shri Saket Pareek, Advocate is alleged to have telephoned on 6.11.2000 to Shri Dharamchand Saini to make payment of his balance fees and it was he (Dharamchand Saini) who informed about the death of Chauthmal (respondent) and as per the affidavit of Shri Pareek, he telephoned Dharamchand Saini who said that they have no knowledge about the pendency of appeal which means Dharamchand Saini had no knowledge. I am surprised as to who Shri Saket Pareek telephoned only to Shri Dharamchand Saini and not to Tulsiram Saini obviously because it was Dharamchand Saini under whose instructions as Secretary of the appellant Society as described in title of it application in the impugned order this appeal was filed before this Court. No affidavit has been filed of Dharamchand Saini or of Tulsiram Saini either to support the story or to state that Dharamchand Saini ceased to be Secretary of the Society nor any document of the Society has been filed for having elected new Secretaries one after the other during pendency of the appeal or after the suit. Hence, it cannot by any stretch of imagination be inferred that members of one family of Gangaram Saini or the office bearers including Shri Dharamchand Saini or Gopal Saini or Tulsiram Saini (who not only described themselves either as Secretary or the President but also staled in the affidavits as sons of Gangaram Saini, so also before the trial ,Court in suit proceedings) had no knowledge as to the pendency of the present appeal inasmuch as, there is clear admission wrung out from para 11 of the application that L/Rs of deceased Chauthmal have been substituted in place of defendant (respondent) in suit proceedings before the trial Court. Thus, mere are no cogent reasons tocondone the delay of 450 days in moving the application for bringing the L/Rs of deceased, that too on the assertions made and the story engineered by the present appellant Society.
10. As regards citations relied upon by Shri G.L. Pareek, with due respect to the learned Judge of the Apex Court, the ratio decidendi is not applicable to the facts and circumstances of the present case.
11. In OP Kathpalia v. Lakhmir Singh (supra) as is apparent from para 30, the factum of death of respondent No. 1 came to know for the first time from the letter to the Registry on March 2, 1984 whereas, in the instant case the factum of death of respondent Chauthmal was well within the knowledge of the appellant Society's office bearers and that being so, they had substituted L/Rs in suit proceedings and not in this appeal within time.
12. In UIT Jodhpur v. Gokulnarain (supra), there was lapse on the part of counsel appearing in executing court to intimate the counsel appearing in the Supreme Court so, the Apex Court held that such a lapse can't be construed to be knowledge as to the death of respondent.
13. In both the cited cases (supra), emphasis was on deriving knowledge of death of the respondent and not as to the pendency of appeal. The facls being distinguished to the present case, the ratio decidendi of these cases does not render any help to the appellant for condonation of the delay in moving for substitution of L/Rs of respondent in this appeal.
14. Let me browse through provisions contained Rule 4 of Order 22 CPC which prescribes procedure in case of death of one of several defendants or of sole defendant. In the case at hand, the defendant respondent Chauthmal was sole one, so as per provisions under Rule 4 (1) of Order 22 CPC where a sole defendant or sole surviving defendant dies and the right to sue survives, the court, on an application made in that behalf, shall cause the legal representative of deceased defendant to be made a party. Sub-rule (3) of Rule 4 of Order 22 CPC provides that where within the time limited by law no application is made under Sub-rule (1) the suit shall abate as against the deceased defendant. Crucial and relevant provisions are contained in Order 22 Rule 4(5) CPC which reads as under:-
'(5) Where (a) the plaintiff was ignorant of the death of a defendant, and could not, for that reason, make an application for the substitution of the legal representative of the defendant under this rule within the period specified in the Limitation Act, 1963 (36 of 1963), and the suit has, in consequence, abated, and
(b) the plaintiff applies after the expiry of the period specified there for in the Limitation Act, 1993 (36 of 1963), for setting aside the abatement and also for the admission of that application under Sec. 5 of that Act on the ground that he had, by reason of such ignorance, , sufficient cause for not making the application within the period specified in the said Act,
the Court shall, in considering the application under said Sec. 5, have due regard to the fact of such ignorance, if proved.'
15. If afore quoted provisions are carefully conjointly read over then it is crystal clear that the Court has to consider application under Section 5 of the Limitation Act with due regard to the fact of such ignorance, if proved, inasmuch as according to Clause (a) to Sub-rule (5) of Rule 4 (supra), the plaintiff in case of ignorance of the death of a defendant and for that reason, if fails to make an application for the substitution of L/Rs. of the deceased defendant under rule 4 within the period specified in the Limitation Act, 1963, then the plaintiff may apply after expiry of the period (supra) for setting aside the abatement and also for the admission of that application under Section 5 ofthe Limitation Act on the ground that he had by reason of such ignorance of the death of a defendant, sufficient cause for not making the application within the period specified (supra)..
16. However, it is not the case of the plaintiff (appellant herein) that he was ignorant of the death of defendant Chauthmal. Only case put forward on behalf of the plaintiff in this appeal is that plaintiff appellant had no knowledge of the pendency of this appeal, rather it is admitted fact duly proved by the appellant's admission in its application under consideration that in the suit pending before the trial Court L/Rs of (he deceased defendant (respondent) have already been brought on record by applying within the time specified under the Limitation Act so also under Rule 4 of Order 22 CPC. But the appellant Society failed to apply for substituting the L/Rs of the deceased respondent in this appeal within the time specified under the law.
17. Similarly, Rule 9 of Order XXII (22) CPC requires the plaintiff to prove that he was prevented by any sufficient cause from continuing the suit. The mere allegation about his not coming to know of the death of the opposite party is not sufficient. He had to state reasons which according to him led to his not knowing of the death of the defendant within reasonable time and to establish those reasons to the satisfaction of the court specially when the correctness of those reasons is challenged by the legal representatives of the deceased who have secured a valuable right on the abatement of the suit. The limitation for an application under Rule 4 of Order 22 CPC to set aside abatement of an appeal or a suit does start on the death of the deceased respondent (defendant) Article 171 of Pirst Schedule to the Limitation Act (old) provides that, and il does not provide the limitation to start from the date of the appellant's knowledge thereof. My view is fortified from the observations made by the Apex Court in Union of India v. Ramcharan (supra), the ratio decidendi whereof applies to the facts and circumstances of the case at hand.
18. Similarly, as laid down in Rangubai v. Sunderbai (supra) by the Apex Court, a combined reading of Order XXII, Rule 3,4 & II CPC shows that the doctrine of abatement applies equally to a suit as well as to an appeal and while applying Rules 3 & 4 to an appeal instead of 'plaintiff' and 'defendant' 'appellant' and 'respondent' have to be read in those rules. In that case it has also been observed as under:-
'another principle however softens the rigour of this rule. It is that if the legal representatives are brought on record within the prescribed lime at one stage of suit, it will enure for the benefit of all the subsequent stages of the suit. If the legal representatives of a deceased plaintiff or defendant are brought on recprd in an appeal or revision from an order made in the suit, it would ensure for all subsequent stages of the suit.
But this legal position cannot be invoked in the reverse or converse situation. An order made in a suit subsequent to the filing of an appeal at an earlier stage will move forward with the subsequent stages of the suit or appeals taken therefrom but it cannot be projected backwards into the appeal that has already been filed. It cannot possibly become an order in the appeal. A suit is not a continuation of an appeal.'
19. The period of limitation prescribed for making an application for substitution is the 'months under Article 177 of the First Schedule to the Limitation Act (old). The Legislature further having taken into account that there may be cases where the plaintiff may not know of the death of the defendant as ordinarily expected, and therefore, it not only provided a further period of two months under Article 171 for an application to set aside the abatement of the suit but also made the provisions of Section 5 of the Limitation Act applicable to such applications. Thus the plaintiff is allowed sufficient time to make an application to set aside the abatement which, if exceeding five months be considered justified by the Court in the proved circumstances of the case.
20. In the instant case, the plaintiff did not state reason as to the ignorance of the death of sole defendant-respondent In this appeal, rather in para 11 it has been admitted that the factum of death of sole defendant respondent was not ignorance but known to the plaintiff that is why L/Rs of defendant have already been substituted in the main suit proceedings before the trial court which was an order made in a suit subsequent to the filing of an appeal and legal position of enurement cannot be invoked in the facts and circumstances of the case and which cannot possibly become the order in the appeal as the suit is not a continuation of an appeal.
21. As I have stated above, the statement that the appellant was ignorant of the pendency of the appeal cannot be sufficient ground for selling aside abatement because under Sub-rule (5) (a) of Rule 4 to Order XXII CPC the court is required to consider the application under Section 5 of the Limitation Act only due regard to the fact of ignorance of the death of a defendant if proved and not ignorance of pendency of the suit or appeal, as the case may be. Thus viewed, on such reasons the appellant has adopted a very wrong attitude from the very beginning. The appellant had no sufficient cause for not making an application to bring the legal representatives of the deceased respondent earlier on record in this appeal. The essentials under the provisions contained Rule 4 (5) (a) to Rule XXII, CPC are that it is for the appellant in the first instance, to allege why he did not know of the death of the respondent earlier or why he could not know about it despite his efforts, if he had made any efforts on having some cause to apprehend that the respondent might have died. Having failed to satisfy the court with due regard to the fact of such ignorance or aforesaid essentials the appellant has no good and strong case for any relief sought for in its applications under Order 22 Rule 4 & 9 read with Section 151 CPC, either for condonation of the delay or for substitution of L/Rs of deceased defendant respondent in this appeal or for setting aside abatement of the appeal. The stand taken by the appellant was absolutely unjustified and beyond complete lack of knowledge of the provisions of the Limitation Act so also relevant provisions for substitution under Order 22 Rule 4 & 9 CPC. That apart, the order of the trial Court bringing the legal representatives of sole defendant respondent on record in the suit proceedings cannot enure for the benefit of this appeal Filed against impugned order declining to grant of temporary injunction. The appellant failed to establish and prove fact of ignorance of the death of sole defendant respondent, and further failed to prove essentials, referred to above, so as to make out sufficient cause for substitution under Order 22 Rule 4(5) (a) CPC. Similarly, the appellant failed to show sufficient cause and satisfy this court for not making an application to bring on record L/Rs of the deceased respondent within time or for not making an application to set aside the abatement within time.
22. Though application dt. 4.12.2000 is stated to be filed under Order 22 Rule 4 & 9 r/w Section 151 CPC, as is evident from its title, but surprisingly enough no prayer is made for setting aside the abatement, either in application dt. 4.12.2000 or application moved under Section 5 of the Limitation Act or even in the affidavits filed subsequently one after the other hence, their applications did not purport to be under Order. 22, rule 9 CPC as well inasmuch as, there is not a word in the application that the appellant had abated and that the abatement be set aside.
23. As a legal corollary to the above, all the applications (supra) filed by the appellant are dismissed and accordingly this appeal is dismissed as having abated. No order as to costs.