PATEL LALLUBHAI RANCHHODBHAI Vs. SHANKARLAL KALABHAI

JUDGEMENT

(1.) . The petitioners are the heirs of the original plaintiff who died during the pendency of the suit. Within five months of the death of the original plaintiff an application was made by the petitioners to join them and bring them on record as heirs and legal representatives of the deceased plaintiff. That application was rejected. Hence this Revision Application. The Trial Court held that as the application for bringing heirs on record was made beyond 90 days it was barred by limitation and there was no application and no prayer for setting aside the abatement and the suit has automatically abated on expiry of 90 days of the death of the original plaintiff. It was further held that the period of limitation of 90 days under Article 120 of the Limitation Act was from the date of the death and not from the date of the knowledge about the pendency of the suit wherein the heirs had applied to be joined. The original plaintiff had expired on 22-10-1989 and the application was made on 9-3-1990. It is not disputed that the plaintiffs Advocate had written a letter on 21-2-1990 to the original plaintiff and it was only then that the heirs learnt about the institution of the suit. Within about 17 days of that knowledge the application was made. It is true that there is no specific prayer for setting aside the abatement but there is a prayer that the application for bringing heirs was made beyond 90 days and therefore a request was made for condonation of delay and for bringing heirs on record. This application could have been and should have been construed liberally and with ends of justice in view and not with any hyper-technicality.

(2.) . In the case of Bhagwan Swarup v. Mulchand AIR 1983 SC 355 the Supreme Court had to deal with a similar question where the High Court had rejected the application for bringing legal representatives on record after years of death of the appellant. The Supreme Court observed that the High Court disclosed a hyper-technical approach resulting in miscarriage of Justice and the Supreme Court observed that such applications have to be approached with a view to do substantial justice and not give precedence to technical rules of procedure. This hyper-technical approach of the Trial Court is disapproved in a similar matter by the Supreme Court in the aforesaid case.

(3.) . In the case of Sital Prasad Saxena v. Union India AIR 1985 SC 1 Supreme Court had again to deal with the same problem and after referring to the aforesaid judgment in the case of Bhagwanswarup (supra) the Supreme Court reiterated the principles laid down therein and held that the High Court had unfortunately committed an error in rejecting the application for condonation of delay.... It was held that the Court has to satisfy itself that the petitioner has made out sufficient cause which prevented it from moving the application for substitution in time. In the present case the Trial Court has utterly failed to address itself on this question on a hyper-technical ground that there was no prayer for setting aside the abatement. Once the fact that the petitioners had no knowledge about the pendency of the suit till the lawyer informed them by letter of February 21 1990 and thereafter application was made on March 5 1990 there is no escape from the conclusion that the petitioners were prevented by sufficient cause from making the application earlier.