INDER Vs. TELU RAM

JUDGEMENT

(1.) THIS revision petition is directed against the judgment of the learned Additional District Judge, Una, whereby he has allowed the appeal filed by plaintiffs, Telu Ram and Tirath Ram and set aside the order dated 24.11.1997 passed by the Sub Judge Ist Class (2), Una dismissing the application filed by the plaintiffs for bringing on record the legal representatives of deceased Babu Ram.

(2.) TELU Ram and Tirath Ram filed a suit against Babu Ram, deceased. Babu Ram expired on 24th May, 1996. An application under Order 22 Rule 4 read with Section 151 C.P.C. was filed on 17.10.1996 by the 1 Whether the reporters of the local papers may be allowed to see the Judgment? plaintiffs and in this application it was stated that on 9.10.1996 counsel for the defendant pointed out that the defendant had expired on 24.5.1996. This fact is borne out from the order sheet dated 9.10.1996 in which it is recorded as follows:- "It is stated that the defendant had died."

(3.) MR .Ajay Sharma, learned counsel for the petitioners, has first of all urged that the appeal before the learned Additional District Judge was not maintainable since the application was filed only under Order 22 Rule 4 read with Section 151 CPC and there was no prayer made in the application for setting aside the abatement. I shall deal with this objection first. No doubt in the application there is no mention that the abatement should be set aside. Abatement is automatic in every case. Even if a formal order of abatement is not passed, a suit stands abated in case the application for bringing on record the legal representatives is not filed within the requisite time. However, it would be pertinent to mention that in the application it was specifically prayed that as per information application is moved and delay, if any, may be condoned. The learned trial court did not take into consideration this aspect of the case. An application is drafted by the counsel and not by the parties. If the counsel inadvertently or by mistake or even by negligence does not make a prayer for setting aside the abatement, the party should not suffer for his lapse. If the entire application is read in its proper context, it is obvious that the purpose of filing the application was that the legal representatives be brought on record and the suit be contested on merits. This could only have been done if the abatement is set aside. It would be pertinent to mention that this aspect of the matter was within the knowledge of the trial court and the trial court, while dismissing the application passed an order stating that the suit stands abated. The application, though purported to have been filed only under Order 22 Rule 4 read with Section 151 CPC, must be read to be an application under Order 22 Rule 4 read with Rule 9 and Section 151 C.P.C. Hence this submission is rejected.