Kuldip Singh vs Hari Chander and another

J.V. Gupta, C.J.

This revision is directed against the order of the trial Court dated June 11, 1990, whereby the application filed by the plaintiff to implead the legal representatives of Sham Sunder, deceased defendants was dismissed.

The plaintiff filed the suit for the recovery of Rs. 60,000/ with interest on June 9, 1987. When notice of the suit was issued, counsel for the defendants appeared. However, later on, it was revealed that Sham Sunder, defendant, had already died on April 10, 1987, that is, before the filing the suit. Consequently, the application for impleading the legal representatives of the deceased was filed which was contested on behalf of the defendants on the ground that the question of bringing the legal representatives of the deceased on the record did not arise as the defendant was already dead before the suit was filed. The trial Court took the view that the limitation to file the suit expired on November 30, 1989, whereas the application filed for bringing the legal representatives of the deceased on record was dated November 11, 1989. According to the trial Court since no names of the legal representatives of Sham Sunder deceased were disclosed by the plaintiffs in the application, the same could not be entertained and, therefore, the question of impleading the legal representatives of the deceased did not arise. Consequently, the application was dismissed.

The learned counsel for the petitioner submitted that the application dated November, 11, 1989, was filed within limitation and, therefore, the same should have been allowed under Order 1 Rule 10, Code of Civil Procedure. In support of the contention, the learned counsel relied upon Shantadurge Temple v. M.F. Jose, AIR 1976 Goa, Daman and Diu 54.

No meaningful arguments could be raised on behalf of the defendants to contest this plea of the petitionerplaintiff. The legal representatives of the deceased could be brought on the record under Order 1 Rule 10 of the abovesaid Code. When the said application was filed the limitation for filing the suit was still there and therefore, the legal representatives should have been brought on the record. Admittedly, the application is dated November 11, 1989 and according to the trial Court, the suit could be filed up to November 30, 1989. Thus, the application was within time and if the names of the legal representatives were not disclosed by the plaintiffs therein, that was of no consequence as it was the duty of the defendant to disclose the names, they being brothers of the deceased.

Consequently, this revision petition succeeds and is allowed. The impugned order is set aside and the application dated November 11, 1989, for bringing the legal representatives on the record in allowed. It will be for the defendants to disclose the name of the legal representatives of the deceased who are to be brought on the record as such. The parties have been directed to appear in they trial Court on February 8, 1991.