HANUMAN DASS Vs. PIRTHVI NATH

JUDGEMENT

(1.) THIS is an application under Section 115 of the Code of Civil Procedure for the revision of an order of the learned first Civil Judge of Kanpur dated 3-3-1953.

(2.) THE circumstances in which that order was made are these. A dispute arose between the partners of a firm carrying on business in Kanpur under the name of Hanuman Das Rup Kishore, and in 1947 a suit was filed against the present applicant and one Radha Kishan, since deceased, by the remaining partners for the recovery of a sum of a little over Rs. 2,71,000/ -. Subsequently an application was made by the plaintiffs, and allowed by the Court, for the amendment of the plaint, and from the order an application in revision was filed in this Court. While that application was pending one of the four plaintiffs, Raghubar Dayal, died on 28-5-1952, and on 5-11-1952, two applications were made by the widow and son of the deceased plaintiff. The first of these applications was for an order to set aside the abatement of the suit so far as the deceased plaintiff was concerned; the second was for the substitution of the widow and son as plaintiffs in the place of the deceased. These applications, which were heard together, were contested by the present applicant on the ground that no sufficient cause had been shown for not preferring the application for an order to set aside the abatement within the period prescribed therefor. The applications were allowed by the learned Judge on the ground that the widow and son were in no way to blame for the delay which had occurred, and it is from that order that the present application in revision has been filed. The contention is that the learned Judge erred in law in arriving at this conclusion, and as a result Will exercise a jurisdiction not vested in him by law.

(3.) NOW an application under Order 22, Rule 3, Civil P. C. , to bring the heirs and legal representatives of a deceased plaintiff on the record has to be made within 90 days from the death, otherwise the suit, so far as that plaintiff is concerned abates; and an application under order 22, Rule 9, for an order to set aside the abatement has to be made within 60 days from the date of the abatement. In the present case the former application ought therefore to have been filed on or before 18-8-1952, and the last date for the filing of the latter application was 17-10-1952. Neither application was in fact filed, as I have said until 5-11-1952.