GADACHANDI THAKURANI Vs. UDI BARIK

JUDGEMENT

(1.) This Civil Revision is directed against ah order rejecting the plaintiffs' prayer for substitution in place of a deceased defendant and for setting aside abatement of the suit.

(2.) In Title Suit No. 317/78 on the file of the learned Munsif of Puri, the Advocate for defendant No. 1 filed a memo on 3-12-1980 intimating the Court that his client had died on 1-9-1980. The case was posted to 30-1-1981 for hearing on the memo. On 30-1-1981 the plaintiffs filed an application for substitution of the legal representative of the deceased defendant No. 1. By a separate application supported by affidavit, they also prayed for setting aside abatement of the suit. It was alleged, in the application for setting aside abatement that the plaintiffs came to know about the death of defendant No. 1 on 1-9-1980. By a subsequent affidavit dated 3-2-1981 the plaintiffs stated that they came to know about the death of defendant No. 1 on 3-12-1980 when a memo to that effect was filed by the Advocate for defendant No. 1, but by mistake the date of their knowledge about the death was mentioned as 1-91980 in their earlier application dated 30-1-1981. The learned Munsif rejected the prayers for substitution and setting aside abatement mainly on the ground that the plaintiffs had come to know about the death on 1-9-1980 as mentioned in their application dated 30-1-1981 and in spite of such knowledge they did. not apply for substitution before 30-11-1980 and that there was no application under Section 5 of the Indian Limitation Act for condoning the delay.

(3.) It is urged in this civil revision that in the plaintiffs' application dated 30-11981 the date of knowledge about the death of defendant No. 1 was wrongly typed as 1-9-1980 instead of 3-12-1980 and that this fact having been explained by the subsequent affidavit dated 3-2-1981, the learned Munsif acted with material irregularity in refusing to condone the delay.