Akhilesh Gupta vs Late Babulal Through Lr

This order will govern the disposal of Civil Revision No.66/2019 and 67/2019 as it has been pointed out by counsel for the petitioner that both these revision petitions involve the same issue on the identical facts situation and the orders which are under challenged in these revision petitions are also identical.

In civil revision No.66/2019 the order dated 17/12/2018 passed in case No.2B/14 and in civil revision No.76/2019 the order dated 17/12/2018 passed in case No.3B/14 are under challenged. By the impugned order, the trial Court has allowed the application of the respondent/plaintiff under Order 22 Rule 3 of the CPC.

The present revision petition is at the instance of the defendant in the suit questioning the aforesaid order.

Learned counsel appearing for the petitioner submits that when the application under Order 22 Rule 3 of the CPC was filed, at that time the limitation for filing the said application had already expired and the suit had abated, therefore, the trial Court is not justified in allowing the application without requiring the respondent/plaintiff to file a separate application for setting aside the abatement and condonation of delay.

Having heard the learned counsel for the petitioner and on the perusal of the record, it is noticed that the death of the original plaintiff had taken place on 06/04/2015. The trial Court had noted that counsel for the plaintiff on 21/07/2015 had taken time for filing of the application for substitution of LR and thereafter the application was filed on 05/08/2015. Article 120 of the Limitation Act provides that the application for bringing the legal representatives of the plaintiff is to be filed within a period of 90 days from the date of the death of the plaintiff. The aforesaid dates which are noted, clearly revel that the application was not filed within a period of 90 days.

Supreme Court in the matter of Gurnam Singh (D) Thr. LRs and others Vs. Gurbachan Kaur (D) by LRs and others reported in 2017(2) JLJ 166 has already considered this aspect of the matter and has held that if the application for substitution of LR is not filed within the prescribed time then there is automatic abatement of the case by holding as under:-

"18) The law on the point is well settled. On the death of a party to the appeal, if no application is made by the party concerned to the appeal or by the legal representatives of the deceased on whom the right to sue has devolved for substitution of their names in place of the deceased party within 90 days from the date of death of the party, such appeal abates automatically on expiry of 90 days from the date of death of the party. In other words, on 91st day, there is no appeal pending before the Court. It is "dismissed as abated".

In view of the aforesaid judgement and the settled legal position, when the application was filed by the LR of the original respondent on 05/08/2015 under Order 22 Rule 3 of the CPC, the suit had already abated, therefore, the respondent was required to file an application under Order 22 Rule 9 of the CPC along with an application under Section 5 of the Limitation Act for condonation of delay but the same has not been filed in the present case and straight way an application under Order 22 Rule 3 of the CPC has been filed. The trial Court has committed an error in not taking note of the aforesaid legal position and in allowing the application under Order 22 Rule 3 of the CPC without requiring the respondent to file application for setting aside the abatement.

Hence, the impugned order passed by the trial Court cannot be sustained and is hereby set aside with liberty to the respondent to file proper application as indicated above. The revision petitions are accordingly allowed.

The original order be kept in CR No.66/2019 and a copy whereof be placed in the record of connected petition No.67/2019.

C.c. as per rules.