CHERUKURI KAMALAKUMARI Vs. AGNIHOTRAM LAKSHMI NARASAMMA

JUDGEMENT

(1.) This is a revision petition filed by the proposed legal representative of the deceased 44th defendant against the order dated 28th January, 1976 of the Additional District Court, Krishna, allowing the application, I.A. No. 1419 af 1975, in O.S. No. 3 of 1967, filed under Order 22, rule 4 and section 151 of the Civil Procedure Code to bring him on record as the legal representative of the deceased 44th defendant.

(2.) The learned Counsel for the petitioner contended that the lower Court erred in allowing the petition and in fact it had no jurisdiction to pass such an order.

(3.) To appreciate the above contention, it is necessary to State the brief facts which have a bearing in the case. The plaintiffs filed a suit for declaration of their title for recovery of possession and for the issue of a permanent injunction in the year 1967, against several defendants. The 44th defendant died on 26th August, 1972 and the application under revision was filed on 19th September, 1975. In the counter, it is stated that the 44th defendant died on 26th August, 1972, and so that the suit against him abated. Therefore his legal representative straight away cannot be brought on record. It was urged before the lower Court that the advocate appearing for the 44th defendant did not bring it to the notice of the Court or to the Counsel of the plaintiffs about the death of his client and that the 2nd petitioner in the I.A. came to know about the death of the said defendant very recently and therefore, there is no question of the petition being barred by limitation. In support of this contention reliance was placed on Bysani Krishniya Chetty v. Dr. Varadachari. The lower Court was of the view that as the Counsel for the- 44th defendant did not bring to the notice of the Court or to Counsel for the plaintiffs or to the plaintiffs about the death of his client, the plaintiffs could not come to know about the death and therefore the petition could not be filed within 90 days, i.e., within the limitation prescribed by law. The lower Court believed the plea that the 2nd plaintiff came to know about the death of the 44th defendant very recently and accordingly, holding that it is not barred by limitation, allowed the same.