JANAKY Vs. SASI

JUDGEMENT

(1.) Petitioner in these civil revision petitions was the plaintiff in O. S. No. 475/ 97. The suit was filed for partition. Respondents 1 and 2 were the defendants 2 and 3. Respondents 3 to 6 are sought to be impleaded as legal representatives of deceased first defendant. I. A. No. 868/98 filed for impleading the legal representatives and I. A. No. 869/98 to condone the delay of 30 days in filing the petition. The court below dismissed both the applications under a common order dated 31-10-1998. CRP No. 2480 of 1998 is arising from the order rejecting I. A. No. 868/98 and CRP No. 2481/98 against rejection of I. A. No. 869/ 98. The plaintiff was seeking partition as the legal heir of deceased husband. Defendants are her husband's brothers. In the affidavit filed in support of I. A. No. 869/98 she has stated that in view of the obstruction created by the defendants, she had to leave the plaint schedule properties and work as a domestic servant with one Dr. Nalini at a far away place, she did not know about the death of the 1st defendant on 27-11-1997. She came to know about his death only when the learned counsel for the 1st defendant informed the court about the same on 12-2-98. It was under these circumstances, the delay of 30 days was caused. The court below rejected the prayer for the reason that. no petition to set aside the abatement was filed and that the delay of each day has not been explained properly. Both petitions were dismissed holding that the suit has abated against the 1st defendant.

(2.) It is contended by the learned counsel for the revision petitioner that the petitioner came to know about the death of the 1st defendant only on 12-2-1998. She need to have filed the application under O.22 R.4 within 90 days from 12-2-1998, but to avoid the plea of limitation she filed I. A. No. 868/98 to condone the delay. She had given sufficient reasons for the delay in her affidavit. It is further contended that the petition for impleading was filed on 23-3-1998 ie. within 60 days from 27-2-1998 namely, the date of abatement. Therefore, the court below should have considered the application as a petition to set aside the abatement also. The learned counsel for the respondent, on the other hand, contended that the court below has correctly dismissed the application. There was no petition to set aside the abatement and the affidavit did not explain the entire period of delay.

(3.) The learned counsel for the petitioner placed reliance on two decisions in support of his contention. In Bachan Ram and others v. The Gram Panchayat Jonda through Jit Singh Sarpanch and others, AIR 1971 P and H 243, a learned Judge of the High Court of Punjab and Haryana took the view that if the petition for impleading legal representatives had been made within the period of 60 days provided under Art.121 of the Limitation Act, 1963, that application should have been treated by the court below as an application for setting aside of the abatement. While coming to the above conclusion the learned Judge quoted with approval three decisions of the Lahore High Court in Kirpa Ram v. Bhagat Chand, AIR 1928 Lah. 746 , Babu v. Mt. Naraini, AIR 1924 Lah. 424 and Ata - ur - Rahman v. Mashkur - un - Nisa, AIR 1926 Lah. 474 . In Kunhikayyumma and another v. Union of India and others, AIR 1984 Ker. 184 , a learned Judge of this court has taken the view that if from the facts and circumstances of the case sufficient cause for the delay in seeking substitution of legal representatives of deceased party was obvious the court would be justified in granting the relief ignoring the fact that the affidavit neither mentioned the cause nor prayed for setting aside the abatement. The prayer to set aside abatement should be treated as being implicit in the application for impleading the legal representatives. A similar view has been taken by the Delhi High Court in Delhi Development Authority v. Raghunath Sahai Gupta, AIR 1973 Del. 262 .