Smt. Har Devi and another vs Joginder Singh and others

A.L. Bahri, J.—The civil suit brought by Ram Katan and others against Joginder Singh and others for declaration with respect to the land in dispute, with consequential relief of permanent injunction restraining the defendants from alienating the land or from interfering in any manner with the lawful possession of the plaintiffs, was pending in the Court of Sub-Judge III Class, Sirsa Ram Gopal, one of the plaintiffs, died and his legal representatives-Smt. Har Devi (widow) and Smt. Sajjna (mother) filed an application for being impleaded as plaintiffs in the suit in place of Ram Gopal. This application was dismissed on 12th January, 1987. Hence this revison petition.

The trial Court dismissed the application on the ground that it was barred by time, as having been filed more than three months after the death of Ram Gopal. I have heard Shri L.N. Verma, learned counsel for the petitioners.

Article 120 of the Limitation Act reads as under:-

Description of suit

Period of limitation

Time from which period begins to run.

120 Under the Code of Civil Procedure, 1908, to have the legal representative of a deceased plaintiff or appellant or of a deceased defendant or respondent, made a party.

Ninety days

The date of death of the plaintiff, appellant, defendant or respondent as the case may be.

The trial Court seems to have held the application to be barred by time as having been filed more than 90 days from the death of Ram Gopal, taking into consideration the provisions of Article 120 of the Limitation Act. However, this provision is not applicable when the application was filed by the legal representatives of the deceased. Such a case would be dealt with under Article 137 of the Limitation Act, which is a residuary article and provides for a period of three years. This matter was considered by S.S. Kang, J in Janak Singh and another v. Vasanda Ram 1985 Hary. R.R. 82. In that case the defendant had died. An application for being impleaded as a party to the suit was brought by the legal representatives. In para 4 of the judgment it was observed that no limitation was prescribed for making such an application. Provisions of Article 120 were not applicable to such an application. It was held as under:-

The language employed in this Article leads to an irresistible conclusion that a period of 90 days is provided for filing of an application to have the legal representatives of the deceased-plaintiff or an appellant or of a deceased defendant or respondent, made a party. This Article is not attracted when the application is made by the legal representative to get himself impleaded as a legal representative. The use of words ''to have'' is full of meaning. It connotes that one person wants to have another person to be impleaded as a party. When a legal representative of a defendant files an application that he should be impleaded as a party, the application is not to have him impleaded; rather it is to get him impleaded.

Similar view was taken by J.V. Gupta, J. in Paramjit and others of Gurgaon v. Tara Chand 1986 Hary R.R. 66. In view of the judicial pronouncements, as referred to above, the application filed by the present petitioners, who are legal representatives of Ram Gopal plaintiff, could not be dismissed as barred by time.

For the reasons stated above, this revision petition is accepted, the order of the trial Court, dismissing the application for bringing on record the legal representatives of Ram Gopal deceased, is set aside, and the petitioners are ordered to be impleaded as plaintiffs in place of Ram Gopal. There will be no order as to costs.