POLPOTO Vs. NILKHANT GANBA BORKAR

JUDGEMENT

(1.) This Civil Revision application is filed against the Order of the District and Sessions Judge dated 1-12-1971, whereby the application of the applicants for joining the heirs of the respondent No 1 and for carrying out the consequential amendment, was dismissed.

(2.) The respondent who was the original plaintiff No.2 and her deceased husband, original plaintiff No.1 filed a civil suit against the petitioners and prayed for temporary injunction restraining them from interfering with the suit-property. The application for temporary injunction was heard on 22-4-1971 and the case was fixed for orders on 10-5-1971 and thereafter on 31-5-1971 on which date orders were passed. Meantime on 12-5-1971 the plaintiff No.1 died. The fact of the death was not known to the petitioners. The petitioners filed an appeal against the order of the Lower Court granting injunction in favour of the plaintiff's. The appeal was filed against the plaintiff No.2 as well as against plaintiff No.1 as the petitioners had no knowledge that the plaintiff No.1 had died. This fact was averred by the respondents in an affidavit and was not denied by the plaintiff No.2. The applicants state that they learnt about the death of the plaintiff No.1 on 14-8-1971 and they immediately proceeded to obtain the death certificate which they in fact obtained on 16-8-1971 and on 1-6-1971 they preferred their appeal before the District Judge. From the certified copy of the death certificate which was shown to me by the advocate for the petitioners I find that the death of the plaintiff No.1 which occurred on 12-5-1971 was registered only on 3-6-1971, i.e., 2 days after the appeal was filed in the District Court. In view of this fact and in the absence of specific denial by the plaintiff No.2 that the petitioners got the knowledge of the death of the plaintiff No.1 for the first time on 14-8-1971 I accept the statement of the petitioners in this regard.

(3.) After obtaining the certified copy of the death certificate on 16-8-1971 the petitioners made an application to the District Court on 18-8-1971 that the heirs of the plaintiff No. 1 be joined as party-respondents in the appeal before the District Court and that the petitioners be allowed to carry cut the consequential amendment. The dismissal by the District Court of that application gave rise to the present Revision application. The application was dismissed by the Lower Appellate Court on the ground that the application was an application for bringing the heirs of the plaintiff No.1 on record and was not made within the limitation period of 90 days provided for that purpose by the Limitation Act.