Suman Khanna vs Bharat Hotel And Restaurants
2002 Latest Caselaw 120 Del

JUDGMENT

R.C. Jain, J.

1. These civil revisions are directed against the order of the learned trial court dated 28.7.97 by which an application under Order 22 Rule 3 read with Section 151 CPC moved on behalf of the plaintiff praying for substitution of the legal representative of the deceased-plaintiff No. 2 Manohar Lal has been dismissed.

2. The facts leading to the present revisions are that the petitioner and her father Manohar Lal have filed suits for recovery against the defendants. During the pendency of the suit, plaintiff No. 2 Manohar Lal died at Delhi on 3.10.94, but no application for substitution of his legal representatives was moved within a period of 90 days. An application under Order 22 Rule 3 Along with an application under Section 5 of the Limitation Act was filed on behalf of the plaintiff No. 1 on 17.7.1996 stating therein that the deceased Manohar Lal had left behind only two daughters namely Smt. Suman Khanna plaintiff No. 1 and Ms. Manish Sahai and since Suman Khanna was already on record, Smt. Manish Sahai be allowed to be substituted in place of plaintiff No. 2 as his legal heir. It was further stated that the application could not be filed as the plaintiff was under the bonafide impression and belief that her earlier counsel Shri B.B. Saxena had moved such an application. However, once the ture position came to the notice of the newly engaged counsel Shri S.K. Bhaduri, he took immediate steps for filing of the said applications. The applications were opposed on behalf of the defendant mainly on the ground that there was no sufficient ground for condoning the delay in as much as Shri S.K. Bhaduri, counsel for the plaintiff was representing the plaintiff in other suits, where substitution applications were duly filed. The learned trial court on a consideration of the matter, dismissed the application mainly on the ground that the plaintiff had failed to explain each day's delay from 17.5.96 when the true facts are stated to have came to the knowledge of the plaintiff and up to 17.6.1997 the date of filing the application and consequently the delay could not be condoned.

3. Notice of the revision petitions were issued to the respondent and thereafter representation was also made on some dates of hearing, but subsequently the respondent remained unrepresented. Accordingly, I have heard Shri S.K. Bhaduri, learned counsel for the revision petitioner and have given my thoughtful consideration to the submissions made.

4. Relying upon a decision of the Andhra Pradesh High Court in the case of Depatla Ammannamma v. D. Ramireddy and Ors. , the learned counsel for the petitioner emphatically argued that on the face of the factual position obtaining on record that one of the legal representative of the deceased-plaintiff Manohar Lal viz. Suman Khanna plaintiff No. 2 being already on record, remaining legal representatives can seek their substitution within a period of three years as provided under Articles 137 and it was not necessary for them to apply for substitution within 90 days as provided under Article 120 of the Limitation Act.

5. The Court relying upon an earlier judgment of the same High Court reported as Venkataramayya v. Munnemma held as under;--

"It is contended by Ms. V. Lakshmidevi for the petitioner that there was really no need for the petitioner to have filed any application under Section 5 of the Limitation Act for condensation of the delay in filing an application to bring on record as a legal representative of her deceased father. It is her contention that to an application like the present one wherein her two minor sons have been recorded as the legal representatives of the deceased Konda Reddy in second appeal. it is not Article 120 or 121 of the Limitation Act that would apply, but it is Article 137 of the Limitation Act that is attracted. Article 137 of the Limitation Act provides a period of limitation of three years for the filing of any application for which no period of limitation is provided elsewhere in the divion, the commencement of the period being when the right to apply accrues. She submitted that there is really no question of limitation in the instant case for the reason that already the two sons were on record as legal representatives and that being so, any application by a person in the position of the present petitioner can file an application within three years under the residuary Article 137 of the Limitation Act."

6. The facts and circumstances of the case in hand are not different in as much as on the death of plaintiff No. 2 Manohar Lal, the suit cannot be said to have abated because right to sue survived in favor of Smt. Suman Khanna in her own right as plaintiff No.1 as also being one of the legal representatives of the deceased Manohar Lal. It was only the other legal representative namely Ms. Manish Sahai whose name was required to be substituted, the application under Order 22 Rule 3 CPC was admittedly made within three years from the death of plaintiff No. 2 was within time and, therefore, not barred by limitation and no application under Section 5 of the Limitation Act for condensation of delay in filing the application for substitution was in fact required. Accordingly the application under Order 22 Rule 3 deserve to be allowed as there was no dispute either about the date of death of Manohar Lal or about the legal representatives left by him.

7. In the result the revision petitions are hereby allowed and the impugned order dated 28.7.97 dismissing the application of the plaintiff/petitioner under Order 22 Rule 3 read with Section 151 CPC is hereby set aside and Smt. Manish Sahai is ordered to be substituted as one of the legal representatives of the deceased Manoher Lal. Plaintiff shall take appropriate steps by filing amended memo of parties within four weeks.