NIRMAL KUMAR Vs. SOHANLAL

JUDGEMENT

(1.) HEARD learned counsel for the parties on the application dated 7. 4. 2000 submitted by the appellant with a prayer that the legal representatives of Sohanlal be taken on record as their names were inadvertently not mentioned in the appeal and instead of name of legal representatives of Sohanlal, name of Sohanlal himself has been shown in the array of parties. It is submitted by learned counsel for the appellant that the suit was originally filed in the year 1983 and the suit was dismissed on 22. 2. 1991. The. appeal was preferred against the above judgment and decree dated 22. 2. 1991. The appeal was transferred to the Court of Civil Judge (Sr. Div.), Nathdawara and during the pendency of the appeal defendant-Sohanlal expired and an application u/o. 22 R. 4 CPC was submitted by the appellant- plaintiff himself on 22. 5. 1995 and the legal representatives of deceased-Sohanlal were taken on record. According to appellant inadvertently, Sohanlal has been impleaded as party respondent No. 1 in this appeal despite all above fact and this mistake occurred due to the fact that a judgment and decree of the First Appellate Court dated 28. 2. 1997, the respondent No. 1 has been shown as Sohanlal, though the legal representatives of Sohanlal were taken on record in the ear 1995. According to learned counsel, when the mistake can be committed by the Court itself, and which misled the counsel for appellant as appeal was drafted by the Advocates and not by parties, the party cannot be punished. The name of Sohanlal has been shown as respondent No. 1-defendant in this appeal and this is a bona fide mistake in framing the cause title only, which has nothing to do with the merit of the case. In these circumstances, the appellant prayed that the legal representatives of deceased-Sohanlal be impleaded as party in place of Sohanlal-respondent No. 1.

(2.) LEARNED counsel for the legal representatives of deceased- Sohanlal vehemently opposed the application and submitted that the application filed by the appellant is barred by time as per sub-cl. (2) of the O. 41 R. 20 CPC as the limitation for filing appeal has already expired. LEARNED counsel for the respondent also submitted that this was a clear case of negligence of the appellant and appellant himself moved application for bringing legal representatives of deceased-Sohanlal before the First Appellate Court. Therefore, appellant-plaintiff cannot say that he had no knowledge of the fact that Sohanlal was died at the time of filing of the appeal. It was also submitted by learned counsel for legal representatives of Sohanlal that their is no application u/s. 5 of the Limitation Act filed by the appellant alongwith this application. LEARNED counsel for the legal representatives of deceased-Sohanlal relied upon the judgment of the Hon'ble Apex Court delivered in the case of Ch. Surat Singh (dead) & Ors. vs. Manohar Lal & Ors. (1 ).