Ganesan and Others vs Doraisamy and Others

Srinivasan, J.—The first defendant in the suit O.S. No. 1166 of 1989 died on 25.5. 1990. The petitioners herein who are the plaintiffs in the

suit file Application No. 379 of 1992 on 8.7.1992. But, in the affidavit filed in support of the said application it was stated that the first defendant

died on 8.4.1992. In that application, the proposed legal representatives filed a counter on 8.9.1992 pointing out that the first defendant died on

25.5.1990 and the application was out of time. The matter was being adjourned from time to time for enquiry. Ultimately it was heard on

17.11.1992. The court dismissed the application holding that it was out of time. The Court pointed out that as per the death certificate which was

filed by the proposed legal representatives, the date of death was 25.5.1990 and not 8.4.1992 as alleged by the plaintiffs.

Thereafter, the plaintiffs filed I.A. No. 116 of 1995 on 8.2.1995 under Order 1, Rule 10(2) and Section 151 of the CPC praying for impleading

the legal representatives of the deceased first defendant as parties to the suit. The said application was opposed by the proposed parties as well as

the second defendant. The learned III Additional District Munsif has dismissed the application holding that it was barred because of the order

passed in I.A. No. 379 of 1992. It is the said order which is questioned in this revision petition.

There is absolutely no merit in this revision petition. Even when I.A. No. 379 of 1992 was filed, it was out of time and the date of death of the

first defendant was wrongly given in the affidavit filed in support of the application. Even though a counter-affidavit was filed by the proposed legal

representatives in which the correct date of death was mentioned the plaintiffs did not take any steps to file appropriate applications for setting

aside the abatement or condoning the delay in setting to set aside the abatement. Even after the Court dismissed the application on 17.10.1992, the

plaintiffs kept quiet for more than two years and filed the present application under Order 1, Rule 10, C.P.C. only on 8.2.1995 which the trial

court dismissed.

Reliance was placed on the judgment of the Supreme Court in Bhagwan Swaroop and Others Vs. Mool Chand and Others, and Ramesh

Hirachand Kundanmal Vs. Municipal Corporation of Greater Bombay and Others, . Both the rulings will not apply in the present case as the

applications in those cases were filed by the legal representatives themselves. The Supreme Court held that that even though applications under

Order 22, C.P.C. had been dismissed as out of time, the application could be maintained under Order 1, Rule 10, C.P.C. In this case, the ruling

will not apply because the applicants are the plaintiffs and they want to bring on record the legal representatives of the deceased first defendant. In

so far as they are concerned, the suit had already abated and it ought to have been dismissed as such. The plaintiffs having failed in their attempt to

bring the legal representatives on record as early as in 1992 cannot seek to get over the earlier order by the back-door. The application is wholly

unsustainable in law and the court below has taken the correct view in the matter.

The civil revision petition is dismissed.