M VENUGOPAL Vs. MARAPPA

JUDGEMENT

(1.) THIS civil revision petition is directed against the decree and order of the District Munsif, Hosur, made in IA.No.342 of 1994 in O.S.No.60 of 1976, dismissing the application of die petitioner to implead one of the legal representatives of the first defendant Pedda Marappa, under Order 22, Rule 4 (5) (b), C.P.C. read with Section 5 of the Limitation Act, 1963. The petitioner herein is the plaintiff and eldest son of Chinna Marappan. He filed a suit for partition and separate possession of the suit schedule property. The first defendant is the purchaser of some of the suit schedule mentioned properties. The plaintiff has alleged that his father Chinna Marappa has alienated joint family property when the plaintiff was a minor. In the suit, the plaintiff had already impleaded other brothers, sisters and also first defendant. It is stated that the first defendant Bedda Marappa expired in the year 1987 and left behind a son and a daughter. The son Marappa was already as second defendant in the suit. The plaintiff made an application to bring on record the daughter of Bedda Marappa as one of the legal representative under Order 22, Rules 4(5) read with Section 5 of the Limitation Act, 1963 and also filed an application for condoning the delay. Learned trial Judge has dismissed the application. Aggrieved by the same, the petitioner has preferred this civil revision petition.

(2.) MR.M.V.Krishnan, learned counsel for the petitioner contended that there is infirmity in the impugned order. Learned counsel further submitted that once one of the heirs is a party to the suit as a defendant, any delay in bringing on record the legal representatives of the other heirs shall not be a ground to dismiss the application. In support of the said contention, learned counsel for the petitioner referred to the ruling of the Patna High Court in Badri Narain Prasad Sah and others v. Bansidhar Prasad and others, A.I.R. 1982, Pat. 138, wherein a learned Single Judge of the Patna High Court has observed as follows: "It is a settled law that if some of the heirs of the deceased are already on the record then the question of limitation does not arise in the bringing the other remaining heirs on the record".

(3.) I have considered the contentions of the learned counsel for the petitioner and the respondent. There is force in the contention of Mr.MV.Krishnan that once one of the heirs of the deceased is already on record as a defendant, there is no question of abatement of the proceedings. The term, "legal representative" is defined under Section 2(11) C.P.C. as follows: