MADAN, J. - (1.) HEARD learned counsel for the parties on the respondent's application under Order 22 Rule 4 CPC. The sole appellant plaintiff Keshav Dev died on 22. 10. 98. His legal heirs have not been brought on record till date. The respondent Mst. Naraini expired on 11. 11. 93. This fact was within the full knowledge of the appellant but no application was filed to bring the legal heirs of Mst. Naraini or even the LRs of the appellant on record.
(2.) FROM the perusal of the record. I find that appeal was dismissed on 1. 2. 1994 for non prosecution. The learned Single Judge passed the order dt. 1. 12. 94 to the following effect:- " It appears that the appellant is no more interested in prosecuting this appeal. The appeal is, therefore, dismissed in default for non-prosecution and stands disposed of accordingly. " Thereafter, an application was filed for restoration of the appeal vide S. B. Civil Restoration Application No. 167/94 on which the order was passed by this Court on 27. 8. 97 when this Court gave three days time to file PF & Notice failing which, the restoration application would stand dismissed without any reference to this Court. Thereafter, on 15. 10. 97, the Registry in view of the earlier order of this Court dt. 27. 8. 97 dismissed the restoration application. Thereafter, the appellant again filed another application for restoration of restoration application bearing S. B. Civil Restoration Application No. 140/99 which was allowed by the learned Single Judge of this Court vide order dt. 27. 8. 99 with a direction that the Restoration Application No. 167/94 shall stand restored to its original number. Again, the PF & Notices were not filed. Thereafter, the PF & Notices were filed belatedly by the appellant on which this Court passed the order on 20. 9. 2001 after recording the statement of the counsel for the appellant that he had filed the PF & Notices for restoration application on 20. 9. 01. He was directed to explain this fact to the Registry and on doing so the notices be issued. Notwithstanding the above order and the above statement of the learned counsel, PF & Notices were not filed with the Registry of this Court and the matter has been awaiting hearing since then. Thereafter, Shri A. K. Bhandari, learned counsel appearing for the respondent filed application u/o. 22 R. 4 CPC for seeking necessary directions from this Court regarding abatement of the appeal on behalf of respondent No. 3. Since no such application had been filed till then, nothing prevented the appellant or his counsel for bringing this fact to the notice of this Court that the application for bringing the LRs of the deceased appellant under Order 22 Rule 4 CPC was filed but the same had infact not been listed before this Court. Personal of the record reveals that infact there is no such evidence on record as to whether the appellant had at all filed any such application. Evidently, this appears to be a gimmick which has been deployed with a view to gain time and to complicate the situation which otherwise is clear from the perusal of the record itself. The requirement of sub-rule (2) of Order 22 CPC, stipulates, as under:- " (2) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff. " From the perusal of the record, it is revealed that no such application has been filed for substitution of legal heirs. It is stated by the learned counsel for the appellant that he filed the application for substitution of legal heirs of Smt. Narayani Devi under Order 22 Rule 4 CPC though with inordinate delay of 3 years. Though, the application for substitution of legal heirs of Narayani has been filed by the appellant under Order 22 Rule 4 CPC but the same has been filed on 7. 12. 2001 whereas Narayani expired on 11. 11. 93. There was thus been delay of about eight years as against the statutory requirement of 90 days. The learned counsel for the appellant has contended in this regard that the LRs of Mst. Narayani are already on the record hence, there was no necessity of moving such application in any event but the appellant was duty bound to have moved the proper application explaining the cause of delay for which I do not find any reasonable explanation on the record. The appeal already stood abated but even no application for setting aside the abatement has been filed alongwith the application explaining the delay in filing the application for setting aside the abatement. The stand taken by the appellant is absolutely unjustified and shows complete lack of bonafides in perusing the appeal. Mr. Bhandari, learned counsel for the respondent has placed reliance upon the judgment of the Apex Court in the matter of Amba Bai vs. Gopal (1), & judgment of this Court in the matter of The Shiva Co-op. Housing Society vs. Shri Chauthmal
(3.) IN Amba Bai (supra), the apex court held, as under:- " The various provisions contained in Order 22 CPC explain the consequences of death of parties in a civil litigation. If one of the plaintiffs dies and if the cause of action survives his legal representatives have got a right to come on record and to continue the proceedings. If the sole plaintiff dies and if the legal representatives are not brought on record, the suit will abate and Rule 9 Order 22 CPC specifically prohibits the filing of a fresh suit on the same cause of action. The only remedy available to the legal representatives is to get themselves impleaded and continue the proceedings, if the suit is already not abated, and if abated, they have to file an application to set aside abatement also. " In Shiva Cooperative Housing Society (supra), this Court, held, as under:- " 14. Let me browse through provisions contained Rule 4 of O. 22 CPC which prescribes procedure in case of death of one of several defendants or of sole defendant. In the case at hand, the defendant respondent Chauthmal was sole one, so as per provisions under R. 4 (1) of O. 22 CPC where a sole defendant or sole surviving defendant dies and the right to sue survives, the court, on an application made in that behalf, shall cause the legal representatives of deceased defendant to be made a party. Sub rule (3) of R. 4 of O. 22 CPC provides that where within the time limited by law no application is made under sub-rule (1) the suit shall abate as against the deceased defendant. Crucial and relevant provisions are contained in Order 22 Rule 4 (5) CPC which reads as under:- " (5) Where (a) the plaintiff was ignorant of the death of a defendant, and could not, for that reason, make an application for the substitution of the legal representative of the defendant under this rule within the period specified in the Limitation Act, 1963 (36 of 1963), and the suit has, in consequence, abated, and (b) the plaintiff applies after the expiry of the period specified therefore in the Limitation Act, 1963 (36 of 1963), for setting aside the abatement and also for the admission of that application under Section 5 of that Act on the ground that he had, by reason of such ignorance, sufficient cause for not making the application within the period specified in the said Act, the Court shall, in considering the application under said Section 5, have due regard to the fact of such ignorance, if proved. " " 15. If aforequoted provisions are carefully conjointly read over then it is crystal clear that the Court has to consider application under Sec. 5 of the Limitation Act with regard to the fact of such ignorance, if proved, inasmuch as according to clause (a) to sub rule (5) of R. 4 (supra), the plaintiff in case of ignorance of the death of a defendant and for that reason, if fails to make an application for the substitution of L/rs of the deceased defendant under rule 4 within the period specified in the Limitation Act, 1963, then the plaintiff may apply after expiry of the period (supra) for setting aside the abatement and also for the admission of that application under Sec. 5 of the Limitation Act on the ground that he had by reason of such ignorance of the death of a defendant, sufficient cause for not making the application within the period specified (supra ). " I have perused the ratio of the aforesaid judgments and in my view, the same are fully attracted to the facts of the instant case. ;