R.K. Aggarwal And Ors. vs S.D. Marker And Anr.
2002 Latest Caselaw 665 Del

JUDGMENT

R.C. Jain, J.

1. The civil revision is directed against the Order of learned Senior Civil Judge, Delhi, dated 19-12-2000 by which an application under Order 22 Rule 4 CPC seeking substitution of the legal heirs of respondent No. 1 has been allowed and the proposed legal representatives of deceased respondent No. 1 in appeal have been ordered to be substituted.

2. The relevant facts to be noted for disposing the present revision petition are that the father of the petitioner Shri Brij Mohan had filed a suit of permanent injunction against the respondent herein. An application under Order 39 Rules 1 and 2 read with Section 151 CPC was made which was allowed by the learned trial court vide order dated 5-8-1988. The defendant-respondent filed appeal bearing No. 159/88 against the order dated 5-8-1988. During the pendency of the said appeal father of the petitioner Brij Mohan expired on 7-7-1988. On an application moved by the petitioner and other legal heirs they were substituted in place of Brij Mohan within the stipulated period. However, no application was made by the defendant-appellant for substitution of the legal heirs of the deceased plaintiff-respondent Brij Mohan in the appellate court within the stipulated period of Limitation. An application under Order 22 Rule 4 CPC dated 10-12-1998 was moved with the averments that the names of the proposed legal representatives of the respondent had come to the knowledge of the appellant after substitution of their names in the suit. The application was opposed on behalf of the proposed legal representatives of respondent No. 1 mainly on the ground that the application was time barred inasmuch as the factum of the death of respondent No. 1/plaintiff was brought to the notice of the appellant on 13-7-1998 and as no application was made within the prescribed period of limitation the appeal had abated and no substitution of legal representatives of respondent No. 1 should not have been allowed in the appeal.

3. Learned appellate court on a consideration of the matter and more particularly the fact that an application for bringing the legal representatives of respondent No. 1/plaintiff was filed by the proposed legal representatives of the respondent No. 1 in the trial court, allowed the application and substitution had been effected. Aggrieved by the said order the petitioner has come up in this revision.

4. I have heard the learned counsel for the parties. The learned counsel for the petitioners has reiterated the objection taken by them before the appellate court about the substitution application being barred by limitation and having been made after abatement of the appeal and the learned trial court was, therefore, not justified in allowing the application more particularly in absence of an application for setting aside the abatement of the appeal. In support of his contention the learned counsel has placed reliance on a decision of the Allahabad High Court in the case of Chandradeo Pandey and Ors. v. Sukhdeo Rai and Ors. . In that case the court was considering the question about the period of limitation for making an application for substitution of heirs in revision proceedings and held that Article 137 of the Limitation Act 1963 being a residuary article must be construed ejusdem generis on other articles dealing with applications and as most of other articles deal with applications under the Code of Civil Procedure, Article 137 should also be held to apply to application under that code. The court, however, held that so far as the suit and the appeals were concerned, it was Article 176 of the Limitation Act providing for a limitation of 90 days which is to be applied to applications under Order 22 Rules 3, 4 and 11 of CPC. As against this the learned counsel for the respondent has placed reliance upon a later decision of the same High Court in the case of Surat and Ors. v. Bhrigunath Upadhyay and Ors. 1989 All L.J. 795 wherein it has been laid down that strictly the provisions of Order 22 are not applicable to revision or other miscellaneous proceedings and it is Article 137 which would apply in relation to an application under Order 22 CPC made in a pending misc. proceedings like the one for setting aside the ex-parte decree.

5. There is no dispute to these legal propositions but on the face of the fats and circumstances of the present case viz. that only a civil misc. appeal challenging an interim order was pending in the appellate court, when the suit was still pending before the leaned trial court where the legal representatives of the deceased plaintiff were duly substituted can it be said that the appeal had abated owing to the delay in filing the application. In the opinion of this court, the answer would be a plain "no" because what is important to be seen is as to whether cause of action still survived against the legal representatives of the deceased respondent and whether the appellant was still interested in prosecuting the appeal. In the case in hand both these conditions very much exist. Besides there admittedly the legal representatives of the deceased had been substituted in the suit and the Civil Misc. Appeal against the interim order can be said to be nothing but continuation of the suit. In the circumstances there was no question of the abatement of the appeal. The learned trial court was, therefore, fully justified in allowing the application under Order 22 Rule 4 CPC.

6. The impugned order does not suffer from any material irregularity, illegality or jurisdictional error which calls for any interference by this court. The revision petition being devoid of any merits is hereby dismissed.

CM 635/01 also stands disposed of accordingly.