D.K. Seth, J. - (1.) THE opposite party No. 2 on 12.12.1996 filed an application for dismissal of the revisional application on account of death of opposite party No. 1. The opposite party No. 1 died on 6th November, 1996, which is not disputed by the Defendant applicants. The Defendant applicants on the other hand filed an application for substitution on 4.4.1997 seeking to substitute the heirs of the deceased Plaintiff opposite party No. 1. Two applications namely application dated 12.12.1996 for dismissal of the revisional application and the application dated 4.4.1997 for substitution were taken up for hearing.
(2.) SRI M. S. Haq, learned Counsel appearing on behalf of opposite party No. 2 contended that the application for substitution filed on 4.4.1997 cannot be entertained since the same has been filed after expiry of '90' days without any application under Section 5 of Indian Limitation Act for condonation of delay. Sri M.C. Tewari, learned Counsel for the Defendant -applicants contends that since one of the heir of the deceased namely the opposite party No. 2 is already on record and represents the joint interest of the heirs, therefore there is no scope of abatement of the proceedings. In support he relies on the decision in the case of Mahabir Prasad v. Jage Ram and Ors. : AIR 1971 SC 742, Secondly, he contends that limitation of '90' days for substitution would not apply in a revision before the High Court. In view of decision in the case of Chandra Deo Pandey and Ors. v. Sukhdeo Ram and Ors. : AIR 1972 All 504 (FB). the limitation would be governed under Article 137 of the Schedule to the Limitation Act, which is three years and, therefore, no application under Section 5 of Indian Limitation Act, would be necessary. Admittedly, the suit is a suit for eviction of the Defendant -applicants who are three in number. The said three Defendant -applicants were alleged to be the tenant under the Plaintiff opposite parties. No case of splitting of tenancy or splitting up of interest of the landlord have been pleaded. Both the interest in the property have been pleaded to be joint while tenancy has also not been pleaded to be separate. The heirs sought to be substituted are also interested jointly in the property. All the heirs jointly inherited the interest of the deceased and, therefore, there is no splitting up of interest of any of the heirs in respect to the suit property. Such joint interest is also existing in the opposite party No. 2 who is one of the heirs of the deceased. Amongst the heirs, one is also minor for whom, the mother namely opposite party No. 2 had prayed for appointment of herself as guardian of the minors.
(3.) IN the case of Mahabir Prasad (supra) it is held, the fact that the person jointly interested in the decree has been made a party -Respondent and on his death his heirs have not been brought on the record, does not per se divest the appellate court of his jurisdiction to pass decree in appeal under Order XLI, Rule 4 of the Code of Civil Procedure. The jurisdiction of the appellate court under Order XLI, Rule 4 of the Code is open when the other persons who are parties to the proceeding before the subordinate court and against whom a decree proceeded on a ground which was common to the Appellant and to those other persons are either not impleaded as parties to the appeal or has been impleaded as Respondents. Where in a proceeding a party dies and one of the legal representatives is already on the record in another capacity, it is only necessary that he should be scribed by an appropriate application made in that behalf that he is also on the record, as an heir and legal representative. Even if there are other heirs and legal representatives and no application for impleading them is made within the period of limitation prescribed by the Limitation Act the proceeding will not abate.;