HANSRAJ PRUSHOTTAM DASS Vs. SUMAN JAIN

JUDGEMENT

(1.) This revision petition is directed against the order dated 25th May, 1989 passed by Shri Ghansham Dass Gupta, Sub Judge 1st Class. Delhi whereby the applications of the defendants-petitioners under Order 9 Rule 9 of the Code of Civil Procedure, 1908 and also under Order 22 Rule 4 of the Code of Civil Procedure, 1908 read with Section 5 of the Limitation Act have been dismissed.

(2.) The facts giving rise to this revision petition are that a suit under Order 37 of the Code of Civil Procedure, 1908 was filed by the plaintiff-respondent against petitioner No. I through its sole proprietor, late Shri Hans RaJ. At this stage it may be noted that the petitioners are the legal heirs of Shri Hans .Raj, deceased. An application for leave to defend filed by Shri Hans Raj before the trial Court was dismissed in default on 6.1.1988 and consequently a decree was passed against Shri Hans Raj, the defendant. The defendant, Hans Raj, during his life time filed an application under Order 37 Rule 4 of the Code of Civil Procedure, 1908 on 13.1.1988 for restoration of the application and consequently for setting aside the decree, which was dismissed in default on 6.1.1988. (sic) However, during the pendency of this application, Shri Hans Raj died and on 20th May, 1988 counsel for the deceased Shri Hans Raj informed the trial Court about his death and the case was adjourned to 3rd June, 1988, on which date none appeared on behalf of the deceased and the court dismissed the restoration application for default. According to the petitioners, they were not aware of the proceedings of the suit and of the decree having been passed against their father, Shri Hans Raj, and they came to know only on 16th November, 1988 when the Court bailiff came for attaching the properties of the petitioners. On inspection of the file on 28th November 1988, they came to know about the proceedings and in fact counsel for the deceased did not inform them about these proceedings and the moment they came to know about these proceedings of the suit and the application. moved by their father under Order 37 Rule 4 of the Code of Civil Procedure, 1908, two separate applications were filed by them-one under Order 9 Rule 9 read with Section 151 of the Code of Civil Procedure, 1908 read with Section 5 of the Limitation Act for restoration of the application filed by their father which was dismissed in default and another under.Order 22 Rules 4 & 9 read with Section 151 of the Code of Civil Procedure, 1908 for bringing them on record as the legal heirs of Shri Hans Raj, deceased-defendant. These applications were dismissed by the impugned order and hence this revision petition.

(3.) The learned trial Court has dismissed the applications on the ground that a decree has been passed on 6.1.1988, during the life time of the defendant-Hans Raj, and the application filed under Order 37 Rule 4 of setting aside the decree which was later dismissed in default was also filed during his life . time and it was for the petitioners to have come forward with the application for bringing themselves as legal representatives of the deceased Hans Raj within limitation and further that the reasons given in the application are not satisfactory.