Norata Singh vs Sawaya Singh (deceased) by his LRs

Ashok Bhan J.—Petitioner Norata Singh (hereinafter referred to as "the plaintiff") filed a suit against Sawaya Singh defendant on May 2, 1987, for recovery of Rs. 2700/. The cause of action was based on a pronote and receipt having been executed by Sawaya Singh defendant. Notice of the suit was issued to the defendant for August 7, 1987. On May 6, 1987, defendant died. The plaintiff filed an application on August 7, 1987, i.e. the date which was fixed in suit, for bringing on record the legal representatives of Sawaya Singh defendant.

Trial Court dismissed the application being time barred, as having been filed beyond a period of 90 days. Suit was also dismissed as having been abated.

The plaintiff carried an appeal to the first appellate Court. In appeal, the order of the Trial Court was upheld and it was maintained that the application filed for bringing on record the legal representatives was beyond limitation and the suit had abated. The plaintiff has come in Revision.

I have heard learned counsel for the parties at length.

High Court of Punjab and Haryana has amended Order 22 Rule 4 of the Code of Civil Procedure vide Punjab Government Gazette Part II dated April 11, 1975, wherein it has been provided that if within the time limited by law, no application is made to bring on record the legal representatives of the defendant, then under subrule (1) the suit shall not abate as against the deceaseddefendant and the judgment can be pronounced notwithstanding the death of the defendant.

Both the Courts below have not taken notice of the amendment of Order 22 Rule 4 of the Code of Civil Procedure, made by the High Court. Under similar circumstances, J.V. Gupta, J. (as he then was), in a judgment Saraswati and others v. Hazari Lal and others, 1989 PLJ 670 : 1990(1) RRR 55, held as under :

"It is no more disputed that there was no limitation for bringing on record the legal representatives of the deceaseddefendant in view of the amendment of this Court in Order 22 Rule 4, CPC, vide Punjab Government Gazette, 11.4.1975, Part II, wherein it has been provided that if within the time limited by law, no application is made under subrule (1) the suit shall not abate as against the deceaseddefendant and judgment be pronounced notwithstanding the death and shall have the same force and effect as if it had been pronounced before his death took place. That being so, the question of abatement does not arise and the legal representatives are entitled to be brought on the record at any time."

In view of the amendment made by this Court in Order 22 Rule 4 of the Code of Civil Procedure and the law laid down in Saraswati''s case (supra), this revision petition succeeds, the impugned orders are set aside and the application for bringing on record the legal representatives of deceased defendant is allowed. There would be no order as to costs.

Parties through their counsel are directed to appear before the trial Court on April 20, 1992, on which date the trial Court shall summon the file from the record room and then proceed with the suit and adjudicate upon the dispute in accordance with law.