LAL SINGH Vs. KISHAN GOPAL AND ORS.

JUDGEMENT

(1.) GUJJAR Mai brought a suit for possession of agricultural land against Lal Singh and two others. While the suit was pending, the Plaintiff died on 18th August, 1978. One Vijay Kumar son of Kishan Gopal filed an application, within the period of limitation, for being brought on record as the legal representative of Gujjar Mai on the ground that the deceased had executed a will in his favour and as such he was his heir. That application was dismissed by the trial Court on 7th December, 1978, on the finding that the will was not found to be genuine. After the Dismissal of the aforesaid application filed by Vijay Kumar Kishan Gopal filed application dated 21st December, 1978, under Order 22 Rules 3 and 9 of the Code of Civil Procedure for condonation of delay and for bringing him on record as the legal representative of Gujjar Mai being his next heir as his sister's son. It was pleaded in that application that he was of the impression that Vijay Kumar had a better claim for succession and when he came to know of the dismissal of his application on 20th December, 1978, the present application was filed. Later on, an amendment application was filed for adding the plea that he was the adopted son of Gujjar Mal, deceased -Plaintiff which amendment was allowed by the trial Court. The application for being brought on the record was contested by the Defendants but ultimately by judgment, dated 24th August, 1979, the trial Court allowed the application and brought Kishan Gopal on record as the legal representative of Gujjar Mal, deceased. In arriving at this conclusion, it was found that the Applicant had been able to make out a case of sufficient cause as he was genuinely believing that he had no better case in the presence of Vijay Kumar's claim in view of the decision of this Court in Shakuntla Devi v. Kashmir Chand and Ors. : AIR 1961 P&H 184. It was also found that the application was filed within limitation as the same was presented on 124th day of the death of Gujjar Mai and was within sixty day of the date of abatement under Article 121 of the Limitation Act (hereinafter called the Act). Against the aforesaid decision, Lal Singh, Defendant, has come up in revision to this Court under Section 115 of the Code of Civil Procedure.

(2.) MR . S.P. Jain, appearing for the Petitioner has urged that no sufficient cause was made out and since Kishan Gopal had failed to file the application within the period of ninety days, as required by Article 120 of the Act, the Court below erred in exercise of its jurisdiction in allowing the application. I am not impressed with this argument in view of the decision of this Court in Shakuntla Devi's case (supra). The facts of that case were somewhat identical. Firstly, an application was filed by the widow on the ground that the deceased had performed Karewa with her and was, therefore, entitled to succeed and it deserved to be brought on the record as his legal representative. While that application was pending and more than 150 days had passed, another application was filed by the daughter alleging that she was thinking that the widow had a better claim but by then it had transpired that Karewa type of marriage was not recognised under the Hindu Law and instead of the widow, she would be a preferential heir and therefore, the application was being filed by her. I.D. Dua, J., gave the following decision:

(3.) AFTER hearing the counsel for the parties, I am of the view that under the rule of interpretation such a construction will have to be given to the provisions of the Code of Civil Procedure relied upon by Mr. S.P. Jain, so that those provisions also stand without nullifying the provisions of Articles 120 and 121 of the Act and in doing so the only harmonious construction would be that for filing an application for bringing on record the legal representatives of a deceased Plaintiff or a deceased Defendant the limitation would be ninety days as required by Article 120 of the Act. In case such an application is not made within a period of ninety days, then Article 121 of the Act provides a period of sixty days to obtain an order for setting aside the abatement which automatically takes place on the expiry of ninety days from |the date of death of the party when no application is filed within a period of ninety days. In order to succeed in such application, the Applicant will have to show as to why he could not file the application by the ninetieth day and no duty is cast on him to show why he did not file the application on ninety -first day or soon thereafter when Parliament has specifically provided a clear period of sixty days under Article 121 of the Act. Any other interpretation would mean that Article 121 is not being read in the statute book which, on the well -known principles of interpretation, cannot be done. This further explains Order 22, Rules 9(2) and 9(3) of the Code of Civil Procedure.