RADHEYSHYAM Vs. BHAJAN LAL

JUDGEMENT

(1.) This Civil Revision is against order dtd. 1/12/2023 passed in Civil Suit No.182/2020, whereby, the learned trial judge has allowed the prayer of the plaintiff to substitute the legal heirs of deceased - defendant No.7 - Radha. Prayer was made under Order XXII Rule 4 CPC along with an application filed under Sec. 5 of the Limitation Act for condonation of delay in making the prayer.

(2.) During pendency of the suit, defendant No.7 Radha died on 16/2/2022. This fact came to the notice of the plaintiff from the counsel for the respondent on 11/11/2022. Thereafter, on 18/11/2022, an application under Order XXII Rule 4 CPC was filed for substitution of legal heirs of defendant No.7 - Radha. On the same day, an application under Sec. 5 of the Limitation Act was also filed stating therein that the plaintiff came to know about the death of defendant No.7 - Radha only on 11/11/2022 and on the same day, filed an application to the trial court as it was date; to the effect that very soon the plaintiff would file substitution application and accordingly, substitution application was filed on 18/11/2022.

(3.) Learned counsel for the petitioners submits that as per Article 120 of the Limitation Act, the prayer for substitution was required to be made within 90 days of the date of death and if it was not made within 90 days, the suit against the deceased -defendant No.7 got abated and for setting aside abatement, further 60 days was allowed. Learned counsel for the petitioners further contends that the plaintiff had knowledge of death of defendant No.7 - Radha since very inception because plaintiff had participated in the last rituals of Radha. It was duty of the plaintiff to substitute the legal heirs within time.