GANESAN Vs. DORAISAMY

JUDGEMENT

(1.) THE first defendant in the suit O.S.No.1166 of 1989 died on 25.5. 1990. THE petitioners herein who are the plaintiffs in the suit file Application No.379 of 1992 on 8.7.1992. But, in the affidavit filed in support of the said application it was stated that the first defendant died on 8.4.1992. In that application, the proposed legal representatives filed a counter on 8.9.1992 pointing out that the first defendant died on 25.5.1990 and the application was out of time. THE matter was being adjourned from time to time for enquiry. Ultimately it was heard on 17.11.1992. THE court dismissed the application holding that it was out of time. THE Court pointed out that as per the death certificate which was filed by the proposed legal representatives, the date of death was 25.5.1990 and not 8.4.1992 as alleged by the plaintiffs.

(2.) THEREAFTER, the plaintiffs filed LA. No. 116 of 1995 on8.2.1995under O.l, Rule 10(2) and Sec.l51 of the Code of Civil Procedure praying for impleading the legal representatives of the deceased first defendant as parties to the suit. The said application was opposed by the proposed parties as well as the second defendant. The learned III Additional District Munsif has dismissed the application holding that it was barred because of the order passed in LA. No.379 of 1992. It is the said order which is questioned in this revision petition.

(3.) RELIANCE was placed on the judgment of the Supreme Court in Bhagwan Swaroop v. Mool Chand, A.I.R. 1983 S. C. 355: (1983)2 S. C. C. 132 and Ramesh Hirachand Kutnanrnal v. The Municipal Corporation of Greater Bombay. (1992) 2 S.C.C. 524. Both the rulings will not apply in the present case as the applications in those cases were filed by the legal representatives themselves. The Supreme Court held that that even though applications under O.22, C.P.C. had been dismissed as out of time, the application could be maintained under O.1, Rule 10, C.P.C. In this case, the ruling will not apply because the applicants are the plaintiffs and they want to bring on record the legal representatives of the deceased first defendant. In so far as they are concerned, the suit had already abated and it ought to have been dismissed as such. The plaintiffs having failed in their attempt to bring the legal representatives on record as early as in 1992 cannot seek to get over the earlier order by the back-door. The application is wholly unsustainable in law and the court below has taken the correct view in the matter.