PHAGURAM SAHU Vs. PYARIBAI

JUDGEMENT

(1.) By this petition under Section 115 of the Code of Civil Procedure the applicant/plaintiff seeks to challenge the correctness, validity and propriety of the order dated 20-10-97 passed in Civil Suit No. 160-A/97 by the learned First Civil Judge, Class-II, Bilaspur, refusing to accept the applicant's application filed under Order 22 Rule 4 of the Code of Civil Procedure and dismissing the suit as abated.

(2.) The facts necessary for the disposal of the present petition are that the defendant Malikram died on 19-3-96 but no information was given by the counsel appearing for the said Malikram either to the Court or to the counsel for the plaintiff. Therefore, up to 21 -8-96 the applicant/plaintiff did not make any application for substitution of the legal representatives of Malikram. It is worth noting that between 19-3-96 to 21-8-96 the counsel for the said Malikram appeared on as many as three occasions. On 21-8-96 counsel for the said Malikram declared in the Court that Malikram died, however, he did not give the date of the death or details of the legal represenla lives. The case was adjourned on that day to 18-10-96. On 18-10-96 the applicant/plaintiff made an application under Order 22 Rule 4, CPC but in his application he did not give the date of death. The application was replied on 18-10-97 and the correct date of death was given by the legal representative of the said Malikram as 19-3-96. From the said reply it became clear that the application filed on 18-10-96 was barred by limitation and the plaintiff was required to make an application for setting aside the abatement. The plaintiff did not do so. The matter was argued and by the order dated 20-10-97 the application was rejected and as the defendant No. 4 was treated to be a formal party the suit was dismissed as abated.

(3.) Being aggrieved by the said order of rejection of the said application and dismissal of the suit, the applicant/plaintiff has filed this petition.