DURG SINGH Vs. IIIRD ADDITIONAL DISTRICT JUDGE MAINPURI

JUDGEMENT

(1.) In Suit No. 99 of 1983. learned Munsif, Shikohabad by an order dated 17.10.1987, rejected the plaintiff's application under Order XXII. Rule 9, C.P.C. together with an application under Section 5 of the Limitation Act. on the ground that there was no sufficient reason that prevented the plaintiff from making the application within time. An appeal being Appeal No. 19 of 1988. was preferred against the said order. The appellate court had allowed the appeal and set aside the order passed by the learned Munsif and allowed the application under Order XXII. Rule 9. C.P.C. This order has since been challenged in this writ petition.

(2.) Mr. Swarajaya Prakash. learned counsel for the petitioner, has assailed the order on the ground that the plaintiffs were aware of the death and had filed an application for impleadment on 16.1.1987 but did not press the said application. On expiry of 90 days from 3.10.1986. on which the death took place, the suit had abated. The period for setting aside the abatement also stood abated on 3rd March, 1987. whereas the application under Order XXII. Rule 9 was filed on 9.4.1987. Therefore, after having got their first application dated 16.1.1987 dismissed, the plaintiffs are estopped from making application under Order XXII, Rule 9- The order of dismissal of the application dated 16.1.1987 has the effect and attracts the principle of res Judicata which is also applicable even at different stages of the suit. He further contends that since the plaintiffs were aware of the factum of death of the deceased, who happened to be the father of the plaintiff, they cannot claim that they did not have any knowledge of the death and they having filed an application on 16.1.1987. It cannot be said that there could be a reasonable ground which could have prevented them from filing the application till 9.4.1987. Therefore, the delay could not be condoned despite objection filed by the defendant-petitioner. He further contends that the appellate court did not consider the impact of the ratio decided in the case of State of Gujarat v. Sayed Mohd. Baquir El Edross. 1981 (4) SCC 1. and that in the case of AJal Verma v. Ram Bharosey Lal and others, AIR 1951 All 794 (FB). According to the learned counsel, the appellate court had come to a finding that the plaintiffs were ignorant. Therefore, according to him, the application ought to have been filed under Order XXII, Rule 4, an order in which is revisable. As such even though the order is purported to have been passed under Order XXII, Rule 9, it was in effect under Order XXII, Rule 4, against which revision lies and. therefore, the appeal was not maintainable. On these grounds, he claims that the order impugned should be set aside.

(3.) I have heard Mr. Swarajaya Prakash at length. The last point may be taken up first with regard to the question of maintainability of the appeal as contended by Mr. Swarajaya Prakash. According to him, the plaintiffs being ignorant, of the application is one under Order XXII, Rule 4 Order XXII. Rule 4 prescribes under sub-rule (5) (a) that