KANTILAL Vs. PRAGJI PARSHOTTAMS HEIR

JUDGEMENT

(1.) Heard learned counsel appearing for the parties. The present Revision Application is filed against the order dated 15th April, 1999, passed below application Exh.85 by the ld.Joint Civil Judge (S.D.), Kutch at Bhuj, in Regular Civil Suit No.373 of 1989, whereby the learned Judge has rejected the request of the orig.plaintiff to join heirs and legal representatives of the deceased defendant no.2. The ld.Presiding Judge dismissed the application accepting the submissions made by the contesting defendants mainly based on the decision of the Apex Court reported in AIR 1982 SC 676. The learned Judge has quoted the relevant part of the cited decision and held that the abatement takes place automatically on the death of a party and unless a specific order to set aside the order of abatement is passed and that too, on the written request, the heirs and legal representatives cannot be brought on record and, therefore, the application deserves to be rejected. Of course, the ld.Presiding Judge has accepted that even on the death of the defendant, the cause of the suit survives and the pliantiff was otherwise entitled to continue with the suit. The thrust of the order is that the application was not preferred in the prescribed period of limitation and no formal prayer to get the abatement set aside was made in the application.

(2.) The second resistance placed by Ms.Bala Thacker, learned counsel appearing for the respondents, before the Court is with respect to sustainability of the present Revision Application and it is argued that the petitioner ought to have approached this Court by way of an appeal under Order 43 Rule 1 (K) of the Code of Civil Procedure because the rejection of the application Exh.5 amounts to rejection of request to set aside the abatement. So the order under challenge is a composite order under Order 22 Rule 4 and Order 22 Rule 9 of the Code of Civil Procedure and when the Order 43 Rule 1(K) of the Code of Civil Procedure provides for an appeal against the order under Order 22 Rule 9 of the Code of Civil Procedure, the present Revision Application should be rejected.

(3.) The application Exh.85 has been filed on 12nd July, 1998 for joining the heirs of the deceased defendant no.2. The death of defendant no.2 was declared by the learned counsel representing the defendant on 31st March, 1998. It is prayed that as there was summer vacation between 12th May, 1998 and 14th June, 1998, and further the advocates were on strike upto 30th June, 1998, no substantive progress was made by the plaintiff and, therefore, the heirs of the deceased defendant no.2 may be joined as party defendants. It was simultaneously prayed that if it is found that there is any delay, the same may be condoned. One of the contentions in the application is that the plaintiff's advocate was not shown the Pursis Exh.83, whereby the death of the defendant no.2 was declared. So the application was under Order 22 Rule 4. It is true that on the date of death, the proceedings against the deceased have been abated but it can survive if the cause survives and if the heirs and legal representatives of the deceased are joined as party in a prescribed period of limitation.