SHANTI DEVI Vs. FIRM BASANT LAL BANARSI DASS

JUDGEMENT

(1.) This revision petition arises out of these circumstances : Jagan Nath, Amar Nath, Suresh Chand and Kali Ram, plaintiffs instituted two suits bearing Nos. 447/1964 and 75/1965 for the recovery of Rs. 37718.75 and Rs. 6445.75, respectively, as damages for breach of two contracts of sale of cotton against the respondent-defendant, Firm 'Basant Lal and Banarsi Dass'. Mithan Lal deceased and Om Parkash, who were partners with the plaintiffs in the firm 'Rikhi Ram Ram Gopal', since dissolved, were impleaded as respondents. Subsequently, Mithan Lal and Om Parkash, on their applications, were transposed as co-plaintiffs. On 7.10.1971, an application was moved on behalf of the defendants under Order 22, Rule 3, Civil Procedure Code stating that Mithan Lal, one of the plaintiffs had died more than one year earlier and since his legal representatives had not been brought on the record and the right to sue did not survive to the remaining plaintiffs, the suit be dismissed as abated. In reply to this application, the plaintiff-petitioners admitted the death of Mithan Lal co-plaintiff. They, however, denied that he had died one year prior to the application. It was further alleged that since the suit related to the winding affair of a dissolved firm, each of the ex-partners had a right to maintain a suit for the recovery of the amount and no question of the abatement of the suit arose. It was further stated that the legal representatives of Mithan Lal deceased (named in the application) be allowed to be brought on the record after deleting the name of the deceased from the plaint. The trial Court accepted the objection raised by the defendant and rejected the request of the plaintiffs to bring the legal representatives of the deceased on the record. It was held that the right to sue did not survive to the remaining plaintiffs. In consequence the suit was dismissed as having been abated.

(2.) The first contention of Mr. S.P. Goyal, learned counsel for the petitioners is that according to the Rule laid down in Kirpa Ram v. Bhagat Chand and others, 1928 AIR(Lah) 746which has been recently followed by this Court in Bachan Ram and others v. Gram Panchayat, 1971 AIR(P&H) 243, the replication submitted by the plaintiffs (in answer to the application made by the defendants) praying for bringing the legal representatives of the deceased, Mithan Lal on record, should be treated as an application for setting aside the abatement, with the result that the order rejecting that replication would be deemed to be an order refusing to set aside the abatement within the contemplation of Clause (k), Rule 1, Order 43, Civil Procedure Code. It was immaterial - maintains Mr. Goyal - if that order was clubbed together with the decision, whereby the suit was dismissed as abated. In any case - contends Mr. Goyal - the Additional District Judge ought to have allowed the plaintiff-petitioners to make up the deficiency in Court-fee and treated the appeal which had been filed within time, as one from a decree.

(3.) Mr. D.S. Nehra, learned counsel for the respondents contends that the Rule in the two cases cited by Mr. Goyal, can be applied only where the application for bringing the legal representatives of the deceased on record, has been made within the further period of 60 days allowed by Article 121 of the Limitation Act, 1963, and not where as in the present case - the application was made more than one year after the death of the party.