ANUPAMA Vs. BHAGWAN DASS

JUDGEMENT

(1.) The facts of the present case are indeed singular. The predecessor of the Revisionist, who is Respondent No.1., had filed a suit for issuance of a permanent injunction. There was some hearing which took place on 14.10.2000, and the Suit was adjourned to 5.12.2000. In the interregnum, however, the Plaintiff died on 2.11.2000. Obviously, it was impossible for the Plaintiff to appear on 5.12.2000, although his Legal Representatives could have done so. As there was no appearance on behalf of the Plaintiff, the Suit was dismissed in default on that date. The Legal Representatives of the deceased Plaintiff filed two applications on 6.1.2001. The first was an application under Order IX Rule 9 of the CPC which quite clearly was beyond the period of limitation which is thirty days from the date of Order. The second application was under Order XXII Rule 3.

(2.) Learned counsel for the Revisionist has relied on Laxminarayan and another vs. Laxmibai, AIR 1935 Nagpur 189 in which it has been held that there is no necessity for filing an application under Order IX for the restoration of the Suit and that such an application would be superfluous. It was held that the order of the dismissal of the Suit in default of appearance should be viewed as a nullity, since the provisions of Order XXII Rule 3 would get attracted immediately on the death of the Plaintiff. The period of limitation for filing an application under Order XXII Rule 3 is ninety days. Therefore, the second application was clearly within time.

(3.) It appears that on 22.3.2001 the property in question was sold by the Legal Representatives of the deceased Plaintiff (Respondents No.3 to 4) in this Petition. The two applications mentioned above were adjourned from time to time and finally came to be considered on 17.5.2001. A bare reading of the impugned Order makes it palpably clear that the new owner was present in Court on 17.5.2001, armed with an application under Order XXII Rule 10 of the CPC for being substituted as the Plaintiff on the strength of the assignment/purchase of the property in question.