Kuldip Bhardwaj vs Municipal Committee, Sirsa

J. V. Gupta, C.J.

This revision petition is directed against the order of the trial Court dated January I 7, 1989, whereby the application filed by the petitioners under Order I Rule 10, Code of Civil Procedure (hereinafter called the Code) was dismissed..

The plaintiff Bank filed suit against the defendants including Sukhwinder Singh, defendant No. 2. During the pendency of the suit, the said Sukhwinder died. His legal representatives, the said wife and the minor sons, moved an application purporting to be under Order I Rule 10 of the Code for being impleaded in the suit being the necessary parties. The said application was contested on behalf of the plaintiff Bank inter alia on the ground that the said Sukhwinder Singh was proceeded exparte and, therefore, there was no occasion for his legal representatives to be brought on the record. According to the trial Court, the said Sukhwinder Singh died on August 1, 1988, whereas the said application war, filed on December 2, 1988. According to the trial Court since tile provisions of Order I Rule 10 of the Code were not attracted, the application was liable to be dismissed.

Faced with this situation, it was prayed on behalf of the applicants that the said application be treated as the one under Order XXII rule 4 of the Code. The trial Court declined the same also on the ground that since the application was filed not within three months of the death of Sukhwinder Singh, the same was not within time and the suit had already abated against him.

After going through the impugned order, I find that the approach of the trial Court was wholly wrong and misconceived. Admittedly, Sukhwinder Singh, defendant, died during the pendency of the suit. Therefore. his legal representatives were entitled to be brought on the record in his place. The application filed on December 2, 1988, could not be dismissed as barred by time and should have been disposed of on merits In view of the amendments made in order XXII Rule 4 of the Code by this Court.

Consequently, this revision petition succeeds and is allowed. The impugned order is set aside. The trial Court is directed to dispose of the said application fresh under Order XXII rule 4 of the Code, which could not be dismissed as barred by time. Since further proceedings were stayed by this Court vide order dated November 2, 1989, the parties have been directed to appear in the trial Court on November 6 1990.