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High Court Of Delhi
KALISH KAPUR - Appellant
Versus
NARESH CHANDRA MISRA - Respondent
Civil 260 of 1970
Decided On : 02/24/1972
ABATEMENT OF SUIT - LEGAL REPRESENTATIVES - IMPLEADING - DILIGENT ENQUIRY - LIMITATION - ARTICLE 137 OF THE LIMITATION ACT, 1963 - APPLICABILITY.
Fact of the Case:
Plaintiff filed a suit for recovery of money against the defendant. During the pendency of the suit, the defendant died leaving behind his widow, two sons, and two daughters. The plaintiff filed an application to implead the legal representatives of the deceased defendant within 90 days of his death. However, the petitioners, while denying that some of the persons sought to be brought on record were the children of the deceased, did not disclose the names and other particulars of the children of the deceased till a late stage. As soon as one of the sons disclosed the names in his statement, the plaintiff moved the court for bringing on record the children so disclosed as legal representatives. The trial court dismissed the plaintiff's application on the ground that he had given up his claim against the other legal heirs. The plaintiff filed a revision petition against the order of the trial court.
Finding of the Court:
The court held that the plaintiff had made diligent enquiries to ascertain the names and addresses of the legal representatives of the deceased defendant and had brought on record all the known legal representatives within the prescribed period of limitation. Therefore, the suit did not abate by reason of the fact that one son and two daughters of the deceased defendant were not sought to be brought on record as legal representatives within 90 days of the date of death of the defendant. The court further held that the plaintiff's statement that he was giving up the claim against the other legal heirs was the result of his helplessness and could not be a bar against him moving for the impleading of the other legal heirs as soon as their names were disclosed.
Issues: 1. Whether the suit abated due to the plaintiff's failure to implead all the legal representatives of the deceased defendant within 90 days of his death? 2. Whether the plaintiff had made diligent enquiries to ascertain the names and addresses of the legal representatives of the deceased defendant? 3. Whether the plaintiff's statement that he was giving up the claim against the other legal heirs was a bar against him moving for the impleading of the other legal heirs as soon as their names were disclosed?
Ratio Decidendi: 1. The court held that the suit did not abate due to the plaintiff's failure to implead all the legal representatives of the deceased defendant within 90 days of his death because the plaintiff had made diligent enquiries to ascertain the names and addresses of the legal representatives of the deceased defendant and had brought on record all the known legal representatives within the prescribed period of limitation. 2. The court held that the plaintiff had made diligent enquiries to ascertain the names and addresses of the legal representatives of the deceased defendant because he had filed an application to implead the legal representatives of the deceased defendant within 90 days of his death and had made further enquiries when the petitioners denied that some of the persons sought to be brought on record were the children of the deceased. 3. The court held that the plaintiff's statement that he was giving up the claim against the other legal heirs was not a bar against him moving for the impleading of the other legal heirs as soon as their names were disclosed because the statement was the result of his helplessness.
Final Decision: The court dismissed the revision petition filed by the plaintiff.
( 1 ) THIS Civil Revision has been filed by Shrimati Kailash Kapoor and Ravi (Ruby) Kapoor, who are the wife and the son of Shri Nand Gopal, against the order of Shri Suresh Chand Jain, Subordinate Judge 1st Class, Delhi, dated 2nd March, 1970, on certain applications filed in Suit No. 107 of 1966 on his file.
( 2 ) THE respondent herein, Naresh Chandra Misra, filed the suit, No. 107 of 1966, for recovery of Rs. 5,600. 00 against one Nand Gopal alleging that he had advanced Rs. 5,500. 00 on a cheque, that the same was not paid back, and that he, therefore filed the suit for the recovery of the amount. During the pendency of the suit, the defendant Nand Gopal died on 2nd February, 1967. The respondent (plaintiff) filed an application on 26th April, 1967, praying that Mrs. Nand Gopal, Kailash Kapoor. Vikram Kapur, G. K. Kapoor, Smt. Rani and Shrimati Nami be impleaded as the legal representatives of the deceased. Kailash Kapoor, Vikram Kapoor and G. K. Kapoor were alleged to be the sons of the deceased, while Shrimati Rani and Shrimati Nami were alleged to be the daugthers of the deceased. The application was opposed by Mrs. Nand Gopal who filed a reply, dated 4th August, 1967, stating that the four persons named by the respondent (plaintiff) in his application viz. , Kailash Kapoor, G. K. Kapoor, Smt. Rani and Smt. Nami, were not the children of the deceased. She, however, did not state whether there were any other children of Nand Gopal, nor did she point out that her own name was Kailash Kapoor. On 5th September, 1967, the respondent (plaintiff) filed a replication stating, inter alia, that he made all possible efforts to find out the names of the legal representatives of the deceased and the only source from which he could collect the names of the legal representatives was the Ration Card of the family of the deceased wherein the names mentioned by him in his application, dated 26th April 1967, were stated, and that in the circumstances, the widow of Nand Gopal may be directed to disclose the correct names of all the legal representatives of the deceased. No order appears to have been passed on this application and the same is stated by the counsel to be still pending.
( 3 ) THEN, on 24th February, 1968, the counsel for the respondent (plaintiff) made a statement that he gave up the claim against other legal heirs as their names and addresses were not known to him in spite of his best efforts to find them. After recording the said statement, the Court adjourned the case to 7th March, 1968. In the mean time, on 4th March, 1968, the widow of Nand Gopal and Vikram Kapoor filed a further reply stating that the deceased Nand Gopal left behind him his widow Smt. Kailash Kapoor, two sons and two daughters, that the respondent (plaintiff) sought to bring on record only the widow Shrimati Kailash Kapoor and Vikram Kapoor as legal representatives, that the other legal heirs, a son and two married daughters, could not be dispensed with as the suit could not proceed in their absence, and that the suit should, therefore, be dismissed as having abated. It was also stated that G. K. Kapoor, who was described as a son of the deceased, was in reality the brother of the deceased. The respondent (plaintiff) then filed a replication on 23rd April, 1968, stating that though it was stated in the reply that the deceased left behind him two sons and two daughters, their names were not disclosed, that he was not able to get the correct names and particulars of all the legal representatives in spite of his best efforts, and that in the circumstances the suit could not be said to have abated.
( 4 ) ON 15th March, 1969, Vikram Kapoor mentioned the names of his brother and two sisters in the course of his statement as D. W. 2. Thereupon, on 12th August, 1969, the respondent (plaintiff) filed an application under Order 22 Rule 4 read with section 151 of the Code of Civil Procedure for bringing the remaining legal heirs of the decea
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