NEW INDIA ASSURANCE COMPANY LTD Vs. VISHAL ROADWAYS

JUDGEMENT

(1.) THIS revision is filed by the petitioners who are the original plaintiffs against the orders dated 2.2.1993 passed by the Joint Civil Judge, Sr. Dn., Nagpur, on the applications of the petitioners /original plaintiffs for condonation of delay and bringing legal representative of the deceased original defendant under Order 22, Rule4 of the Code of Civil Procedure. The Trial Court also passed an order below the plaint to the effect that the plaintiffs have failed to bring the legal representative on record within the prescribed time and hence the suit is abated. The petitioner No. 1-Insurance Company alongwith the petitioner No. 2 filed a suit for recovery against the original defendant M/s. Vishal Roadways through its proprietor for decree of Rs. 52,77,000/- with interest of 18% P.A. on the decretal amount from the date of the suit till actual realisation of the same.

(2.) IT so happened that the defendant's Advocate filed a pursis in the Trial Court informing that the defendant has died on 26.5.1992 but did not finish further particulars and details as to who are the legal representatives of the deceased defendant. It is the case of the petitioners that they came to know on 27.12.1992 that one Yashimthai is the legal representative of the deceased defendant and he is looking after his business, through their investigators and therefore, on 29.12.1992 the petitioners filed application (Exh. 18) for condonation of delay for bringing the legal representative of the defendant on record and the application (Exh. 19) under Order 22, Rule 4 of the Code of Civil Procedure on which the Trial Court passed impugned orders.

(3.) MR . Kukde, the learned Counsel for the petitioners submitted that the approach of the Court in considering the application for bringing the legal representative on record even after the abatement of the suit should be liberal. He submitted that this is not a case where the plaintiffs have been negligent in the matter. The petitioner No. 1 being a Public Sector Undertaking could not have known the death of the original defendant till the learned Counsel appearing for the defendant filed the pursis and thereafter the plaintiffs have taken all the necessary steps in order to ascertain the legal heirs of the deceased defendant. In this view of the matter, Mr. Kukde submitted that the Court ought to have set aside the abatement of the suit and allowed the application for condonation of delay for bringing the legal representative of the deceased defendant on record. He further submitted that the Court ought to have considered that the application for condonation of delay implies the prayer for setting aside the abatement of the suit because if the same is granted then the Court would order bringing the legal representatives on record of the defendant. Mr. Kukde, the learned Counsel for the petitioners relied upon the following cases in support of his contentions.