Smt. Anupama vs Shri Bhagwan Dass And Ors.
2004 Latest Caselaw 347 Del

JUDGMENT

Vikramajit Sen, J.

1. The facts of the present case are indeed singular. The predecessor of the revisionist, who is respondent No. 1., had filed a suit for issuance of a permanent injunction. There was some hearing which took place on 14.10.2000, and the Suit was adjourned to 5.12.2000. In the interregnum, however, the plaintiff died on 2.11.2000. Obviously, it was impossible for the plaintiff to appear on 5.12.2000, although his Legal Representatives could have done so. As there was no appearance on behalf of the plaintiff, the Suit was dismissed in default on that date. The Legal Representatives of the deceased plaintiff filed two applications on 6.1.2001. The first was an application under Order IX Rule 9 of the CPC which quite clearly was beyond the period of limitation which is thirty days from the date of Order. The second application was under Order XXII Rule 3.

2. Learned Counsel for the revisionist has relied on Laxminarayan and Anr. v. Laxmibai, AIR 1935 Nagpur 189 in which it has been held that there is no necessity for filing an application under Order IX for the restoration of the Suit and that such an application would be superfluous. It was held that the order of the dismissal of the Suit in default of appearance should be viewed as a nullity, since the provisions of Order XXII Rule 3 would get attracted immediately on the death of the plaintiff. The period of limitation for filing an application under Order XXII Rule 3 is ninety days. Therefore, the second application was clearly within time.

3. It appears that on 22.3.2001 the property in question was sold by the Legal Representatives of the deceased Plaintiff (Respondent Nos. 3 to 4) in this Petition. The two applications mentioned above were adjourned from time-to-time and finally came to be considered on 17.5.2001. A bare reading of the impugned Order makes it palpably clear that the new owner was present in Court on 17.5.2001, armed with an application under Order XXII Rule 10 of the CPC for being substituted as the Plaintiff on the strength of the assignment/purchase of the property in question.

4. On 17.5.2001 Mr. M.P. Suri, Advocate was present in Court but he pleaded lack of instructions. This was the obvious situation, since the person who had signed his Vakalatnama or had authorised him to enter appearance had since died. So far as the legal representatives were not present or concerned, as they were not interested in the litigation having sold the property to the revisionist on 22.3.2001. The learned Trial Court firstly held that the application under Order IX Rule 9 was barred by time and dismissed it. Having come to this conclusion the learned Trial Court reverted to the position as on 5.12.2000 on which date the Suit had been dismissed, and, therefore, found it unnecessary to implead the legal representatives because the Suit itself had ceased to exist. In view of the decision in Laxminarayan's case (supra), with which I am in respectful agreement, the Court ought to have ignored the application under Order IX Rule 9 and instead concentrated its attention on and have decided the application under Order XXII Rule 3. There is compelling cause and reason for this approach. In the present case the Plaintiff died on 2.11.2001 and the Suit had come up almost within one month of the sad demise. It would be difficult and impractical to expert the legal representatives to be mindful of litigation so close upon the death of their father. There is, therefore, great wisdom in providing the larger period of three months for the filing of an application under Order XXII Rule 3 for impleading of the legal representatives. Since this second application was clearly within he prescribed period of limitation and since there is no dispute pertaining to the legal capacity of the applicants to be imp leaded as the legal representatives, the application under Order XXII Rule 3 ordinarily would have been allowed. On 17.5.2001 learned Counsel for the assignee / purchaser was present in Court with an application under Order XXII Rule 10 seeking impleadment in place of the erstwhile deceased Plaintiff. A miscarriage of justice has transpired since the Court had preferred to dismiss the application under Order IX Rule 9, treating the Suit as having come to an end and thereupon found itself to be devoid or bereft of jurisdiction for considering the application under Order XXII Rule 3 and under Order XXII Rule 10. Had these applications been considered at the threshold of the proceedings on that date, the verdict would have been totally different.

5. Learned Counsel for Respondent No. 1 has drawn attention to the fact that an Appeal is maintainable in respect of the dismissal of an application under Order IX Rule 9. As has already been observed, this application should be ignored altogether. He has next contended that on the dismissal of the application under Order XXII Rule 3, Rule 9 gets attracted. There is no connection between these two Rules so far as the facts of the present case are concerned. Rule 3 entitles legal representatives to seek impleadment. Rule 9 deals with the consequences of a failure to do so, that is, the automatic abatement of the Suit on the expiry of the prescribed period. The contention lacks merit. So far as Rule 3 is concerned, it is not appealable. Since it is this application that has been dismissed by reason of a failure to exercise jurisdiction vested in the Court, this Revision is completely competent. Learned Counsel for the Respondent has also argued that an application under Order XXII Rule 10 is also an appealable order. However, in this case, as has been seen above, both the applications under that Order have not been decided on merits. In these circumstances the present Revision is maintainable.

6. Learned Counsel for Respondent No. 1 further contends that an application for compromise has been drafted by the parties. The original is in his possession. No Orders on this application have been passed, as it has not even been filed. I shall refrain from making any observations on this score.

7. In this analysis the Revision is accepted. On the strength of a decision in Krishna Behari Goel v. Raj Mangal Persad and Ors., (Vol. 41, C.N. 99) and the Full Bench in Manmanthappa v. Parvathi Bai and Ors., AIR 1954 Hyderabad 12 (Vol. 41, C.N. 2) the Assignee of the Legal Representative can apply for substitution. The impugned Order is, therefore, set aside and the Assignee, namely, the revisionist, who was the applicant in the application under Order XXII Rule 10, is imp leaded as the Plaintiff in Suit No. 212/1997 filed on 9.7.1997. The Suit is restored to its original number. Parties to appear before the appropriate Court on 13.5,2004.

8. The Petition stands disposed of.