MITHAILAL DALSANGAR SINGH Vs. ANNABAI DEVRAM KINI

JUDGEMENT

(1.) Leave granted.

(2.) A brief resume of relevant facts would suffice. There was an agreement to sell relating to the suit property entered into by the owners thereon, impleaded as defendants in the suit, in favour of three persons namely Bharat Singh, Mathai Lal Singh and Smt. Nirmala on 29th October, 1987. The three vendees joined as co-plaintiffs and filed a suit for specific performance of the agreement to sell. There was a prayer for the grant of ad interim injunction which was allowed by the learned single Judge of the High Court who was trying the suit. As against the order granting ad interim injunction, the defendants preferred an appeal and therein the three plaintiffs were impleaded as respondents. On 5th April, 1997 Bharat Singh, one of the plaintiffs expired. The appeal filed by the defendants came up for hearing before the Division Bench of the High Court. On 17th June, 2000, which was the date of hearing, a statement appears to have been made before the High Court that Bharat Singh had expired. The counsel for the plaintiff-respondents wrote a letter to the two surviving plaintiffs informing them of the factum of death of the third plaintiff and the need for taking steps for bringing the legal representatives on record. On 29th June, 2000 the legal representatives of the deceased plaintiff took out chamber summons on the Original Side of the High Court for being brought on record in the suit in place of the deceased plaintiff. The defendants in the suit objected to the prayer for impleadment submitting that the prayer was hopelessly barred by time and that the suit had abated. It was also submitted that inasmuch as the cause of action arising to the three plaintiffs was only one, the death of one of plaintiffs had resulted in the suit having abated in its entirety and, therefore, the prayer made by the legal representatives of the deceased plaintiff for being brought on record was not maintainable unless and until the other two surviving plaintiffs had also made a prayer for setting aside the abatement. That having not been done, the chamber summons at the instance of the legal representatives of the deceased plaintiff only was not maintainable. The learned single Judge allowed the prayer made by the legal representatives for condonation of delay in moving the application, set aside the abatement of the suit and allowed the legal representatives to be brought on record. The learned single Judge held that the legal representative-applicants had duly established the sufficient cause for condonation of delay in moving the application for setting aside the abatement. To quote from the order of the learned single Judge, he held-

(3.) Prayers (a), (b) and (c) referred to in the order of the learned single Judge are as under :-