G CHRISTHUDAS Vs. ANBIAH

JUDGEMENT

(1.) A suit in O.S. No. 1 of 1960 was filed under O. 1 of R. 8 of the Code of Civil Procedure for a declaration in respect of 456 London Mission Churches and its properties as belonging to London Mission Christians and for injunction and in respect of certain other properties for recovery of possession. During the pendency of the suit, plaintiff No. 2 died. The suit was dismissed on 1-4-1967 on the ground that it was not maintainable as plaintiffs had not obtained the consent of the Advocate General under S. 92 of the Code of Civil Procedure to prosecute the suit. However, on merits, it was held that there was a valid merger of London Mission Society Churches with the SIUC and thereafter SIUC Churches with CSI.

(2.) Against the said decision in the said suit, an appeal was preferred by plaintiffs Nos. 1, 3 and 5, plaintiff No. 4 did not join as an appellant. He was impleaded as one of the respondents. During pendency of the appeal, all the appellants died. Two persons, Anbiah and Dharmakhan, filed an application for bringing them as LRs. of appellant No. 4 in C.M.P. Nos. 13928 to 13931/1974 on 13-3-1974. They also filed another application to set aside the abatement and to condone the delay in seeking to set aside the abatement. These applications were dismissed on the ground that the applicants did not deliberately take steps to continue the appeal; that no sufficient reasons have been shown for condoning the delay and that the only reason given appeared to be incorrect and, thus, the appeal was dismissed for non-prosecution by an order made on 10-12-1975. At that stage C.M.P. No. 3180/84 was filed under Order 1, R. 8, C.P.C. by the present appellants to set aside the order dated 10-12-1975 for restoration of the appeal and to implead them as representing the members of the LMS Churches and LM Christians on 12-12-1978. It was accompanied by an application C.M.P. No. 10931 of 1979 filed on 9-10-1979 under S. 5 of the Limitation Act to condone the delay in filing the C.M.P. No. 13928 to 13931 of 1974. The Division Bench of the High Court by an order made on 30-4-1991 dismissed the said application. It was noticed in the course of the order (i) that there are no bona fides in the application as the applicants were aware of the dismissal of the appeal long before making the application; (ii) that the appeal having been dismissed on the ground of non-prosecution and no steps having been taken to set aside the order within time, the application is barred by limitation (iii) that the application to bring on record as LRs. also stood barred by limitation (iv) that the petitioners were aware of the dismissal of the appeal in view of the proceedings pending in other Courts but have come to the Court with incorrect statement of fact and, therefore, no reason for any relief to be given to them. These appeals are filed against the aforesaid order.

(3.) Fact remains that an application had been filed before the Court on 13-1-1974 by Anbiah and Dharmakhan in the said appeal. The High Court after adverting to the decision of this Court in Charan Singh vs. Darshan Singh, AIR 1975 SC 371 and Ramaswamy vs. Collector of Dindigul, 1990 (2) MLJ 562, set out the law correctly to the effect that if a suit had been filed in a representative capacity, there can be no abatement on the death of any one of the plaintiffs or the appellants; that only Art. 137 of the Limitation Act is applicable and within the period set out therein an application for impleadment could be made inasmcuh as no particular provision is made therein as to the period when which such application can be filed. If we reckon the time from the time the last surviving appellant died that is from 7-10-1973, the application filed by Anbiah and Dharmakhan was within time and, therefore, the Division Bench could not have passed the order made on 10-12-1975 that the party concerned is not diligent in prosecuting the appeal even on the statement of law made by the High Court.