DINANATH Vs. AMAR NATH

JUDGEMENT

(1.) This revision petition is directed against the order dated 30th April, 1980, recorded by the Senior Sub-Judge, Hamirpur, disallowing an application of the petitioner-plaintiff made under O.22, R.4, C.P.C. It appears that the petitioner-plaintiff filed a suit for the recovery of Rs. 5,300/- against Shri Chet Ram, the predecessor-in interest of the respondents. The suit was filed on 3-2-1976. Shri Chet Ram, the original defendant, expired during the pendency of the suit on 18-8-1977. The factum of death of Shri Chet Ram was brought to the notice of the trial Court on 23rd Aug. 1977. On that day the trial court directed the petitioner plaintiff to take steps under O.22, R.4, C.P.C. for bringing on record the legal representatives of the deceased-defendant by 2-9-1977. No such steps having been taken by the petitioner-plaintiff till 2-9-1977, the trial Court adjourned the case to 4-10-1977 with the directions that an application under O.22, R.4, C.P.C. be filed by that date. The petitioner-plaintiff, however, could not file the application under O.22, R.4, C.P.C. by 4-10-1977. The trial Court on account of the failure on the part of the petitioner-plaintiff to move an application under O.22, R.4, C.P.C. passed the following order on 4-10-1977 :- "Present : Counsel for the parties. No application under O.22, R.4, C.P.C. filed but it is admitted that Chet Ram defendant has expired. The suit stands abated. File be consigned to the record room after completion."

(2.) Thereafter the petitioner-plaintiff on 3rd Nov. 1977, made an application under O.22, R.4, C.P.C. praying that the legal representatives of the deceased defendant as named in that application be brought on the record. It was specifically mentioned in that application that the original defendant, Shri Chet Ram, had expired on 18-8-1977. The application under O.22, R.4, C.P.C. was thus filed within the statutory period of 90 days reckoned from the death of Shri Chet Ram. Notice of that application was issued to the proposed legal representatives of the deceased who put in appearance through their counsel on 26-4-1980. The case was then adjourned to 30th April, 1980, to enable the counsel for the parties to take instructions from their clients. On 30th April, 19f30, however, the trial court proceeded to record the impugned order dismissing the application of the petitioner-plaintiff made under O.22, R.4, C.P.C. on the ground that in view of the earlier order dated 4-10-1977 reproduced above, the application under O.22, R.4, C.P.C was not maintainable.

(3.) I have heard the learned counsel for the parties and have also perused the relevant provisions of O.22, R.4, C.P.C. I entertain no doubt that the impugned order of the learned trial court is totally unsustainable in law and must be quashed. It being not in dispute that the petitioner-plaintiff had made this application under O.22, R.4(1), C.P.C. within the prescribed period, the trial court was duty bound to allow that application, implead the legal representatives of the deceased as a party and then to proceed with the suit in accordance with law. The language of sub-r. (1) of R.4 of O.22, C.P.C. is very clear on this point and admits of no doubt. It reads :-