Vikram vs Rajesh and Others

Dr. Bharat Bhushan Parsoon, J.—In a suit filed by petitioner-plaintiff Vikram seeking a decree of declaration and possession, an application for impleading legal representatives of Om Parkash son of Bharat Ram, defendant No. 4 therein, was dismissed on 4.10.2013. Impugning this order, in this revision petition, it is claimed by the petitioner-plaintiff that he had come to know of death of defendant No. 4 Om Parkash subsequent to filing of the suit and hence cognizance of death of defendant No. 4 on 27.7.2007 could not be taken in the plaint at the time of institution of the suit. It is urged that moving of application by the plaintiff for bringing LRs of deceased-defendant No. 4 on record was delayed because it was beyond the control of the petitioner-plaintiff. Per contra, stand of the contesting respondents is that the suit against a dead person is not maintainable and is to be dismissed.

Hearing has been provided to the counsel for the parties while going through the paper book.

Concedingly, the suit was filed on 17.11.2008. Report regarding death of defendant No. 4 admittedly was placed on record on 10.3.2009 revealing that he had died on 27.7.2007. In Karuppaswamy and Others Vs. C. Ramamurthy, , referring to proviso of sub-section 1 of Section 21 of the Limitation Act, 1963, it was held that impleadment of LRs of defendant No. 1 in a case where the plaintiff becomes aware of death of a defendant from the remark on returned summons, is permissible. Counsel for the petitioner has also sought support from Sukhchain v. Election Tribunal, Muktsar and others, 2006 (4) R.C.R. (Civil) 419 (P & H) in this regard.

No doubt, the application for impleadment of LRs of defendant No. 4 was not filed with expeditious despatch after information of death report of defendant No. 4 was available on record on 10.3.2009 but the fact remains that defendant No. 4 is no more. It is alleged that this fact somehow escaped from the notice of the petitioner-plaintiff at the time of filing of the suit and when it became known, the application for impleadment of LRs was filed.

Viewed from another angle, the petitioner-plaintiff would not be getting any benefit from late filing of the application. Moreover, the codefendants can also bring that fact of death of defendant No. 4 on record.

Keeping in view the totality of facts and circumstances as discussed above, I am of the considered view that ends of justice would be met if the application for LRs of defendant No. 4 is allowed. Consequently, accepting the revision petition, the impugned order is set aside. The application for impleading the legal representatives of Om Parkash son of Bharat Ram, defendant No. 4 is, thus, allowed subject to operation of law of limitation qua the legal representatives of deceased-defendant No. 4.

Parties are directed to appear before the lower court on 16.10.2014. Nothing observed above shall have any bearing on the merits of the suit pending before the lower court.