- (1.) An ex parte order dated 16-4-1979 was passed by the Judge Small Causes Court in S.C.C. Suit No. 104 of 1978 decreeing the Plaintiff's suit for arrears of rent and ejectment. The suit was filed by one Sri Ratan Prakash along with 5 others, namely, Smt. Ram Murti Devi, widow of late Sri Shiv Shanker, Jagannath Prakash, Narendra Kumar, Virendra Kumar and Surendra Kumar, minor, all sons of Sri Shiv Shanker. Aggrieved by the ex parte order dated 16-4-1979, the petitioner-tenant filed Revision No. 258 of 1979. During the pendency of the revision, the plaintiff-respondent filed an application on 24-7-1980 to the effect that opposite party No. 4 in Revision, namely, Narendra Kumar had died on 3-12-1979. As the heirs and legal representatives had not been substituted, the revision is liable to be abated. The petitioner filed objections and alleged that on the death of one of the opposite parties who is co-owner/co-landlord, the revision would not abate as the right to sue survives to other respondents. It was further stated that there was no need to implead the heirs and legal representatives. The learned V Additional District Judge by order dated 10-12-1980 dismissed the revision as abated had held that the suit was filed by all the respondents as co-landlord including the deceased and as such the cause of action so far as the deceased respondent is concerned would not survive to the surviving respondent. The petitioner, in the meantime, also applied for substitution of the heirs of deceased opposite party No. 4 by an application dated 11/17-12-1980. By means of this application, the widow of deceased Narendra Kumar and his minor son Master Pappu under the guardianship of his mother were sought to be impleaded as opposite parties No. 4/1 and 4/2. The petitioner also filed a Review petition to recall the order dated 10-12-1980 passed by the II Additional District Judge in S.C.C. Revision No. 258 of 1979. The learned Judge while rejecting the review petition held that although the period for filing the substitution application and to bring on record the heirs and legal representatives of the deceased would be three years, yet as the petitioner had taken a clear stand that there was no need to implead the heirs and legal representatives of the deceased Narendra Kumar, no useful purpose would be served for waiting for three long years of the expiry of limitation. The learned Judge was also of the view that the cause of action would not survive to the remaining opposite parties on the death of one of them.
(2.) In my opinion, both the stands taken by the learned Judge are not correct and are not in conformity with the law laid down in various decisions of this Court. In Chandra Deo Pandey v. Sukhdeo Rai 1972 ALJ 603 (FB)), it has been held that for substituting the heirs and legal representatives of the deceased opposite party in revision, the period of limitation under Art. 137 of the Limitation Act would be three years. In the present case, the petitioner had filed the application for substitution of heirs and legal representatives within 3 years which is still pending. The learned District Judge was not justified in holding that the petitioner had taken a clear stand that there was no need to implead the legal representatives of the deceased. Firstly an application has already been filed within limitation for substituting the heirs and legal representatives. Secondly in the objections filed to the application to abate the revision, it was stated that as the right survives to other opposite parties, the revision as a whole would not abate. It was also alleged that he had no knowledge of the death of opposite party and for this reason he could not implead the heirs of the deceased. It was only as an alternative case it was alleged that there is no necessity for impleading them as the other heirs of Shiv Shanker have been impleaded as opposite parties Nos. 2, 3, 5 and 6, in the Revision.
(3.) On careful examination of these objections and the averments made thereunder, the learned Judge was not correct in stating that the petitioner had taken the stand that there is no need to implead the heirs and legal representatives of the deceased.;