SMT. KESHRI DEVI Vs. VIJAI KUMAR AND OTHERS

JUDGEMENT

(1.) This is a Civil Revision under" Section 115 of the Code of Civil Procedure against the order dated 22-10-1992 passed by the learned Civil Judge Malinabad L.ucknow in ' Regular Suit No. 232 of 1990, whereby he was pleased to allow the amendment application of the respondent No. 1 for necessary correction of the names of the heirs mentioned in the substitution application, and the date of death of the deceased-defendant Shri Radhey Shyam Agarwal. The learned counsel forthe revisionist has contended that the amendment of the substitution application beyond the' expiry of the limitation prescribed for substitution of the heirs could not be legally allowed by the learned Civil Judge as it amounted to the abetment of the Suit against the deceased-defendant. In support of his contention, he has invited my attention to the provisions of Order VI, Rule 1 and 17, Section 153 and Order II Rule 4 of the Code of Civil Procedure as well as to Rule 37 of General Rules (Civil), 1957. He has further pointed out that the application for substitution of the heirs and the application for amendment of one substitution application was not signed by the plaintiff himself and it was got signed by the Advocate, which was also not legal. Mr. A. B. Sinha, learned Senior Advocate appearing on behalf of the contesting respondent No. 1 has replied that for the purposes of Order XXII, it is not necessary that all the heirs of the deceased-defendant be brought on record, and instead only a legal representative is legally required to be brought'on record in place of the deceased defendant so as to represent his estate. He has further contended that even if some heirs are left out and a legal representative is substituted in place of the deceased, the suit does not abate against other heirs as the estate of the deceased is legally represented by the legal representative brought on record. In support of this proposition, he has relied upon the decision of this Court in the case of (1) Mohammad Zafaryab Khan v. Abdul Razzac Khan, 1928 AIR(All) 532, and (2) Sheikh Mohomrnad Hammad v. Tej Narain Lai alias Tej Bahadur Lal,1942 AIR(All) 324, and further a decision of the Rajasthan High Court in the case of Poonam Chand v. Motilal, 1954 AIR(Raj) 287. All these Division Benches have consistently held that the suit or appeal does not abate on the ground that some other heirs have been left out, if a legal representative has been substituted within time in place of the deceased-defendant.

(2.) In the'present case, virtually all the heirs were sought to be substituted in place of the deceased-defendant as his heirs, but for want of proper and complete knowledge by the plaintiff, mistake in the correct description of the names of some heirs was committed in the application for substitution under Order XXII, and also the correct date of the deceased was not written in the substitution application. Whon the objection to this application was received, then the plaintiff came to know the correct names of the heirs, as well as the correct date of the death of deceased-defendant.It was then he moved an application for necessary amendment in the substitution application. The learned Civil Judge after hearing both the parties considered and allowed the applications firstly for amendment of the substitution application, and thereafter the application for substitution. The revisionist who is one of the heirs of the deceased, felt aggrieved and filed this revision. It is thus apparent that the application for substitution was filed within limitation, and the abatement of the suit did not arise. The plaintiff tried to substitute all the heirs as the legal representatives of the deceased-defendant. Even if the heirs whose names were not correctly described in the application for substitution, are left out and excluded, the suit does not abate against the heirs for the reason that only two legal representatives have been substituted. In fact, Rule 4 of Order XXII, CPC envisages substitution of the legal representative and does not speak of the heirs. The word 'legal representative' has been defined by S. 2(11) as follows :-

(3.) This definition excludes the necessity for the substitution of all the heirs of a deceased party. Mere substitution of one legal representative who in law represents the estate of a deceased person, is sufficient forthe prosecution of the suit, and if any legal representative is substituted, the question of abatement of the suit does not arise at all. Therefore, I do not find substance in the contentions of the learned counsel for the revisionist that since only two of the heirs were originally sought to be substituted by the application for substitution under Order XXII, the suit has abated against the remaining heirs. The order of the learned Judge by allowing the amendment application is perfectly within his jurisdiction, and there is neither illegality, nor material irregularity in the impugned order.