The main legal point established in the judgment is the determination of the timeliness of an application to bring the legal representatives of a deceased party on record, considering the starting point of limitation and the date of knowledge of the applicants.

V.K. Sharma, J. (Oral).

1. Order dated 7.3.2009 passed by the learned Additional District Judge, Shimla, H.P. allowing an application under Order 22 Rule 3 read with Section 151 of the Code of Civil Procedure, 1908 (in short ‘CPC’) and thereby ordering to bring on record legal representatives of the sole deceased appellant is under challenge in the present revision petition under Section 115 CPC.

2. Factual matrix is as follows.

3. The suit for grant of a decree of declaration and perpetual prohibitory injunction filed by the petitioner herein, Shri Saran Dass as plaintiff against the predecessor-in-interest of the respondents herein, namely, late Shri Shital Singh being the defendant was decreed by the learned trial Court as under:-

“In view of my issuewise finding, the suit of the plaintiff is ordered to be decreed. The plaintiff is declared to be owner in possession of share of Dwarku Devi in suit land to the extent of ¼ share comprised in khata No. 18/28 measuring 49.17 bighas situated at Prahni, Tehsil and Distt. Shimla, H.P. being only legal heir of Gangia husband of late Dwarku Devi. The defendant is restrained by way of permanent prohibitory injunction from interfering with the possession of plaintiff in respect of suit land. Keeping in view the facts and circumstances of the case, the parties are left to bear their own costs. Decree sheet be prepared accordingly. It is also ordered that case file of mutation No. 133 which was retained vide order dated 6.4.2000 be sent back under safe cover. Record be completed and be consigned to the record room.”

4. Being aggrieved the defendant, late Shri Shital Singh carried the matter in appeal to the Court of the learned District Judge, Shimla District, Shimla, who made over the appeal to the Court of the learned Additional District Judge, Shimla for disposal in accordance with law. However, he died during pendency of the appeal before the learned First Appellate Court as communicated by the learned counsel, who was representing him, who sought adjournments for moving the requisite application for bringing his legal representatives on record and ultimately when none appeared, the appeal was dismissed in default vide order dated 30.5.2006.

5. Against the foregoing background, the respondents herein moved an application under Order 22 Rule 3 read with Section 151 CPC with the following prayers:-

“(i) The present application may kindly be allowed and the legal heirs of late Shri Shital Singh may be ordered to be brought on record.

(ii) That the delay in filing the present application may kindly be condoned.

(iii) That the abatement of the appeal may kindly be set aside.”

6. It was averred that FAO No. 359 of 1999, titled as Shri Saran Dass versus Shri Shital Singh was listed for today (25.9.2006) in the Hon’ble High Court of Himachal Pradesh. In that case the present applicants filed an application intimating the factum of death of late Shri Shital Singh on 25.12.2005. On 25.9.2006 before the Hon’ble High Court, it was pointed out by the learned counsel appearing for the appellant in that case that the legal heirs of late Shri Shital Singh have not been brought on record to prosecute the appeal titled Shri Shital Singh versus Shri Saran Dass which was pending before the learned Additional District Judge, Shimla.

7. It was further averred that the applicants had no knowledge about the pendency of the civil appeal titled as Shri Shital Singh versus Shri Saran Dass in the court of the learned Additional District Judge, Shimla. On enquiries, it was revealed that the appeal referred to above was pending before the learned Additional District Judge and for want of necessary steps for prosecution of the appeal, the same was dismissed in default on 30.5.2006.

8. The further averments are to the effect that applicants being wife and minor children of late Shri Shital Singh have succeeded to his estate. Both the minors are in the care and custody of applicant No.1 being their mother-cum