IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA LPA No. 16 of 2003 Reserved on: 12.08.2008 Date of decision: 14.08.2008 Rakesh Jung and others … Appellants Versus Lt. Col. Sheilesh Jung and others … Respondents Coram : The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellants: Mr. Bimal Gupta, Advocate. For the respondent: Mr. G.D. Verma, Senior Advocate, with Mr. Romesh Verma, Advocate, for respondents No. 1 to 4. Mr. Bhupender Gupta, Senior Advocate, with Ms. Charu Gupta, Advocate, for respondent No. 7. Per V.K. Ahuja, J.: This is a Letter Patent Appeal filed by the appellants against the judgment dated 4.7.2003 passed by the learned Single Judge. Briefly stated, the facts of the case are that a suit for partition was filed by the appellants as plaintiffs as against the respondents. At the time of issuing notices to the defendants it transpired that defendant No. 16 Shri Jiju was already dead on 1.5.2002. The plaintiffs pleaded that the said defendant had in fact died 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 on 11.3.2001 and is survived by the legal representatives as mentioned in the application filed by the plaintiffs under Order 22 Rules 4 and 9 read with Section 151 C.P.C. An application for condonation of delay was also filed alongwith this application by the plaintiffs. Both these applications were resisted on behalf of the defendants. After hearing the parties, the learned Single Judge held that the plaintiffs made the mistake in good faith and the delay deserves to be condoned and accordingly, the application filed by the plaintiffs for bringing on record the legal representatives of deceased defendant No. 16 was allowed and the persons mentioned in the application were ordered to be substituted in place of defendant No. 16. It was also observed that their impleadment in the circumstances of the case is ordered from the date of filing of the suit. Aggrieved by the said order, some of the defendants have filed the present appeal. We have heard the learned counsel for the parties and have gone through the record of the case. The main submissions made by the learned counsel for the appellants were that since defendant No. 16 was already dead on the date of the filing of the suit, therefore, the present application does not lie since the suit was filed against a dead person and his legal representatives cannot be allowed to be brought on record since defendant No. 16 was not alive on the date when the suit was filed. A perusal of the record shows that the suit was filed before the learned Single Judge on 11.1.2002. It was alleged in the application filed by the plaintiffs that defendant No. 16 had died prior to the institution of the suit. This fact was not disputed by the defendants in their reply 3 that defendant No. 16 had died prior to the institution of the suit. Therefore, the facts are not disputed. The only point worth consideration is as to whether the present application can be filed to bring on record the legal representatives of deceased defendant No. 16 who was already dead on the date of filing of the suit. It has also to be considered as to whether fresh suit was required to be filed by the plaintiffs or the legal representatives of deceased defendant No. 16 can be brought on record in the present case. The learned counsel for the respondents had shown a certified copy of the order passed by one of us sitting in a Single Bench, in which a similar question arose and relying upon the decision in this case by the learned Single Judge, application was allowed and it was held that the persons named in the application can be allowed to be brought on record as legal representatives of deceased defendant. Insofar as the question is concerned as to whether the legal representatives are required to be brought on record from the date of the suit. It was observed that the plea of limitation can be considered if raised in regard to the effect of substituting legal representatives on record. The learned Single Judge had clearly observed that their impleadment in the circumstances of the case has to be ordered from the date of filing of the suit. Our attention has also been drawn by the learned counsel for the respondents on two decisions relied upon by them. The decision in United Commercial Bank Vs. Dharam Pal Singh and others, 1988(2) Sim. L.C. 269, of a learned Single Judge of this Court shows that in that case there were three defendants who were originally arrayed in the suit and it was observed that right to sue would survive against the other two defendants even if the name of defendant No. 2 is ordered to be struck from the array of parties without bringing on 4 record his legal representatives. It was held that the legal representatives of deceased defendant No. 2 should be added as parties in this very suit so that the controversy against all of them can be adjudicated upon in one case. It was also observed that it is another question if it can be shown that the suit against the said legal representative stands barred by limitation. Accordingly, the name of deceased defendant No. 2 was ordered to be struck of from the array of defendants and in his place, his legal representatives were made parties. The plaintiff was also permitted to amend his plaint so as to make suitable averments showing as to how the suit is within limitation against the said legal representatives. The matter has been set at rest by a decision of the Hon’ble Apex Court in Karuppaswamy and others Vs. C. Ramamurthy, (1993) 4 Supreme Court Cases 41. In that case it was held as under: “Suit instituted by plaintiff-respondent within limitation period against the sole defendant. Summons returned with the remarks that defendant was dead. Application filed by plaintiff under Or. 22 R. 4 CPC after expiry of limitation period for impleading appellant-LRs of the deceased. Counter statement filed by the LRs pleading that the suit against the dead person was nonest. High Court taking the view that mistake of suing against the deceased was in good faith and hence proviso to S. 21(1) attracted. Held, High Court rightly applied the proviso on being satisfied about good faith. Consequently application for impleading the LRs deemed to have been filed on the date of the original plaint and as such within the limitation period.” Accordingly, the application under Order 22 Rule 4 C.P.C. was allowed. This decision applies on all the fours to the present facts 5 and relying upon this decision, we are of the view that the order passed by the learned Single Judge is correct and calls for no interference and as such, there is no merit in the appeal filed by the appellants, which is dismissed accordingly. Interim order dated 27.8.2003 passed in CMP No. 165 of 2003 and confirmed on 7.11.2005, stands vacated. ( Deepak Gupta ), Judge ( V.K. Ahuja ), August 14, 2008 Judge (BSS) 6 7