J.V.GUPTA, J. - (1.) THE defendant-petitioner has filed this revision petition against the order of the Additional District Judge, Ludhiana, dated 21st February, 1979, whereby the order of the trial Court has been set aside and the application of the plaintiff for setting aside the dismissal of the suit in default has been allowed.
(2.) RAM Kishan Shukla (deceased) filed a suit for mandatory injunction directing Kanwar Sain Shukla, defendant-respondent, to vacate house No. 57 at Khanna. The allegations of the plaintiff in the plaint are that he was living in Tanzania and the house in suit was given by him to defendant, who was no other person than his brother, as a licensee. He cancelled the licence and wanted its possession. During the pendency of the suit, Ram Kishan Shukla died on 4th January, 1976 and subsequently the suit was dismissed in default under Order 9 rule 8 of the Code of Civil Procedure, on 10th March, 1976. On 7th April, 1976, Bala Shukla widow of Ram Kisan Shukla through her attorney filed an application to set aside the dismissal of the suit and to make the legal representatives as the parties thereto. Along with it, an application under Section 5 of the Limitation Act for extension of the period of limitation to implead the legal-representatives of the deceased was also made. It was stated that her husband died on 4th January, 1976, in London by heart attack. She got a big shock and remained seriously ill for two months. When she learnt about the present case, she sent the general power of Attorney to his brother-in-law, Shri Shanti Sarup who received the same on 6th April, 1976. The delay has thus been caused due to the long distances and communication. In the reply filed thereto, the defendant denied the allegations of the petitioner; though he admitted the death of Ram Kishan Shukla. He raised an objection that the application was barred by time and the applicant had no locus standi to file this application. As she was not the citizen of India, the relief of mandatory injunction came to an end with the death of Ram Kishan Shukla. From the pleadings of the parties, the following issues were framed :- 1. Whether the application is within time ? 2. If issue No. 1 is not proved, whether the applicant is entitled to the benefit of the provisions of Section 5 of the Limitation Act ? 3. Whether the applicant alone has locus standi to file the present application ? 4. Whether the applicant is a citizen of India ? If so, its effect ? 5. Whether the right to sue survives with the death of Ram Kishan ? 6. Whether the dismissal of the suit is liable to be set aside ? The trial Court dismissed the application as time barred, though it was held that she was a citizen of India and the cause of action does survive to her. In appeal, the learned Additional District Judge has reversed the finding of the trial Court. He has come to the conclusion that the circumstances of this case are abnormal, and, therefore, there does not appear to be any negligence on the part of the applicant to file this application. The ground of their living in England and death there of the plaintiff is a good round to condone the delay of three days. Consequently he accepted the appeal and allowed the application for setting aside the dismissal of the suit. Feeling aggrieved against this order, the defendant has come up in revision to this Court. The learned counsel for the petitioner vehemently contended that after the death of Ram Kishan Shukla, no right to sue survives, and, therefore, the question of bringing any legal-representative on the record does not arise. In support of this contention, he referred to section 59 of the Easements Act and also cited Chinnan and others v. Ranjithammal, A.I.R. 1931 Madras 216, Karselal and another v. Badriprasad, A.I.R. 1922 Nagpur 162 and Bhoj Raj v. Hardeva and others, A.I.R. 1923 Allahabad 140(1).
(3.) AFTER hearing the learned counsel for the petitioner, I do not find any force in this petition. The language of Section 59 of the Easements Act is quite clear. It only provides that : "When the grantor of the license transfers the property affected thereby, the transferee is not as such bound by the license." Thus, the defendant-petitioner cannot say that the right to sue does not survive to the plaintiff-respondent. She has stepped into the shoes of the deceased-plaintiff and, therefore, it cannot be said that no right to sue survives to her. It may be that she may not be bound by the licence, but that is not the question here. The authorities cited by the learned counsel have no relevancy to the facts of the present case.;