HALWAI SAMITI Vs. JAI SINGH

JUDGEMENT

(1.) The plaintiffs' suit for rent and eviction against defendant tenant Chatru Ram was pending in the learned trial Court. During pendency of suit, Chatru Ram died and his counsel informed the Court about the death of Chatru Ram by filing an application dated 29.1.1985. Thereafter, the plaintiffs moved an application under Order 22 Rule 4 Civil Procedure Code on 15.4.1985, which was allowed by the trial Court vide order dated 29.6.1987 and Chota Devi and Jai Singh were brought on record as legal representatives of deceased Chatru Ram. On 10.7.1987 both the legal representatives of defendant tenant submitted an application under Order 9 Rule 7 Civil Procedure Code, which was allowed and the ex-parte order was set aside and the case was ordered to be listed for hearing on the application under Order 22 Rule 9 filed by the plaintiffs. On 28.7.1987 the plaintiffs moved an application under Order 22 Rule 9 Civil Procedure Code along with application under Section 5 of the Limitation Act. On hearing counsel for the parties, the learned trial Court vide its order dated 24.2.1995 dismissed the application filed under Order 22 Rule 4 Civil Procedure Code dated 15.4.1985. The trial Court vide its order referred to above also dismissed the application dated 28.7.1987 filed under Order 22 Rule 9 Civil Procedure Code The appeal preferred by the plaintiffs was also dismissed by the appellate Court vide its order dated 30.9.1999. Hence, the present revision petition by the plaintiff petitioners.

(2.) I have heard learned counsel for the parties and gone through the orders impugned in this petition.

(3.) It is an admitted position that Chatru Ram died on 5.1.1985 and the plaintiffs submitted an application under Order 22 Rule 4 Civil Procedure Code on 15.4.1985 which was beyond the period of limitation i.e. 90 days from the date of death. However, according to the plaintiffs, they came to know about the death of Chatru Ram on 29.1.1985 and from the date of knowledge they filed the application on 15.4.1985 and as such the application filed by them was well within the period of limitation. The dictum of the Apex Court in such like matters is that cases should not be disposed of on such technicalities. In the case at hand the death of tenant Chatru Ram came to the knowledge of the plaintiffs on filing an application under Order 22 Rule 10-A Civil Procedure Code, and an application under Order 22 Rule 4 Civil Procedure Code was filed within 90 days from the date of knowledge. In the circumstances therefore, the delay of 10 days in filing the application under Order 22 Rule 4 Civil Procedure Code deserves to be condoned and abatement deserves to be set aside.