BADRI PRASAD SOOD Vs. JAI DEV

JUDGEMENT

(1.) The above revision petition even at the threshold can be thrown out as not only frivolous but also vaxatious litigation which has been filed by the first Defendant in civil suit No. 74 of 1997 by way of a revision petition under Section 115 of the Code of Civil Procedure against the order dated 1.4.1999 passed by the learned Sub-Judge, Ist Class (II), Palampur in the suit on an application filed under Order 22, Rule 4 of the Code of Civil Procedure, whereunder the learned trial Judge has chosen to allow the application by ordering the legal representatives of the deceased second Defendant to be brought on record. As could be seen from the order of the learned trial Judge, the suit has been filed for recovery of possession by way of ejectment as also for recovery of Rs. 7,200/- said to be the arrears of rent for the period from 1.4.1994 to 31.3.1997 at the rate of Rs. 200/- per month. The case of the Plaintiffs as would be seen from the plaint itself which has been filed as Annexure P-4 in this revision petition is that the Plaintiffs and the second Defendant are co-owners in the property, that the Plaintiffs have inducted the first Defendant as their tenant in respect of the shop from which he is sought to be evicted, that the second Defendant one of the co-owners did not join the Plaintiffs and if the court is of the view ultimately that the second Defendant is in connivance with the first Defendant and has received the rent, then in that case, the decree for arrears of rent be passed against the second Defendant. While the suit was pending, it appears that one of the co-owner, who did not join with the Plaintiffs and, therefore, was impleaded as the second Defendant, died on 23.3.1998. But the Plaintiffs claiming that they had no sufficient knowledge of the second Defendant and they came to know of the same on 12.6.1998 has filed the application in question under Order 22, Rule 4, Code of Civil Procedure and sought for the impleading of the legal representatives of the deceased second Defendant by stating in the application filed for the purpose as follows:

(2.) It is only the first Defendant-Petitioner who appears to have opposed the said application by filing a reply contending that the Plaintiffs were aware of the death of the second Defendant even on 23.3.1998 since, according to the Petitioner herein, they participated in the last rites and since even as per the claim that the Plaintiffs came to know of the death on 12.6.1998, the application has been filed 12 days after the permissible three months period and consequently, the suit abated and in the absence of any application for condoning the delay under Section 5 of the Limitation Act and the relief for setting aside the abatement, the same is liable to be dismissed. The learned trial Judge has passed the order allowing the application with the following reason:

(3.) Learned Counsel in support of the stand taken as above has placed reliance upon the decisions reported in Union of India v. Ram Charan, 1964 AIR(SC) 215; Krishan Lal v. Beant Singh, 1974 AIR(HP) 52; S.R. Gaitonde v. J.J. Fenseca,1976 AIR(SC) 11; Dina Nath v. Amar Nath, 1987 AIR(HP) 44; Shilawanti v. Kishore Chand, 1977 AIR(P&H) 369; Bahadur Singh v. Har Kaur,1971 AIR(P&H) 328; Manorma v. Chittar, 1990 AIR(MP) 112; P.K. Ramachandran v. State of Kerala, 1998 AIR(SC) 2276; B.S. Singh v. B.D. Singh, 1973 AIR(SC) 204; Municipal Council, Mandsaur v. Fakirchand and Anr, 1997 3 SCC 500; Bakshish Singh v. Arjun Singh, 1996 8 SCC 323; Bibijan v. Murlidhar, 1995 1 SCC 187 Mangal Singh v. Rattne, 1967 AIR(SC) 1786 and Anant Ch. Sahu and Ors. v. Dhruba Ch. Padhan (Dead) and Dhodia Padhan and Ors., 1990 AIR(Ori) 33.