STATE BANK OF INDIA Vs. AMRISTSAR ENGINEERING WORKS

JUDGEMENT

(1.) I.A. 4483 of 1987 has been moved on behalf of the plaintiff bank under Order 22, Rule 4 read with Section 151 of the Code of Civil Procedure (hereinafter called the Code) for bringing on record the legal heirs of deceased defendant no. 4 Smt. Daya Kaur. It is alleged that on or about 6.11.1986 it transpired to the applicant that Smt. Daya Kaur had died. But the date of her death could not be ascertainded despite efforts. On the basis of the information gathered by the field staff of the plaintiff bank it was found that the deceased left behind S/shri Manmohan Singh, Baljit Singh, Surjit Singh and Balbir Singh as her legal heirs and therefore a prayer is made that they may beordered to be substituted in place of the deceased Daya Kaur.

(2.) The .second .application was moved on 19.9.1988 under Section 5 of the Limitation. Act read with. order 22 rule 9 and Section 151 of. the Code for condonation of delay, and setting aside, the abatement of the suit against the deceased defendant no. 4. In this application it is alleged that the plaintiff bank had come to know on or about 6.1 1.1986 that defendant no. 4 had died leaving behind the aforesaid four legal heirs. Counsel for defendants 1 to 3 who was representing deceased defendant no. 4 also did not inform the court about the death of Smt. Daya Kaur. It was only then that these defendants in their reply to the earlier application stated that Smt. Daya Kaur had expired on 17.8.1986 and thus there a was delay of about 21 days in filing the application for bringing on record the legal heirs. It is further stated that late filing of the application was not intentional but on account of bonafide reasons of non-diselosure and non-notice by defendants 1 to 3 about the exact dale of death of Smt. Daya Kaur. Therefore no prejudice was likely to be caused to the defendants if the delay is condoned and abatement was set aside in the peculiar facts and circumstances of this case.

(3.) It may be noted that reply to the first application was filed on behalf of defendents I to 3 only on 13.9.1988. In it also two dates of death of Smt. Daya Kaur are mentioned, In the preliminary objections the date other death is 17.8.1986 whereas in para-2 of the reply the date of death is mentioned as 28.7.1986. During the coures of arguments however learned counsel Shri G.L. Rawal on behalf of the defendants submitted that the correct date of death was 17.8.1986 and there was typographical mistake in giving the other date as 28.7.1986. However the fact remains that the exact date of death of Smt. Daya Kaur was supplied by the defendants only in their reply dated 13.9.1988. The application to set aside the abatement has been moved within six days of this reply i.e. on 19.9.1988. On merits both these applications have been contested on behalf of the defendants. It was admitted in reply lo the earlier application that the proposed legal representatives were the sons of the decased. It was also stated that all the "heirs were not brought on record and those sought to be impleaded did not inherit anything from lhe deceased. In reply to the second application i.e. I.A. 8236 of 1988 it was contended that no duly was cast upon the defendants to supply information about the death of Smt. Daya Kaur and the provisions of Order 22 rule IOA of the Code were being misinterpreted.