The duty of other defendants to inform about the date of death of the deceased party and the liberal attitude of the court in the matter of condonation of delay.

Plaintiff is the revision petitioner.

2. The plaintiff filed the suit for declaration and injunction against four persons. The first defendant Vilvanatha Mudaliar died and therefore, the petitioner/plaintiff filed I.A.No.523 of 2005 under Order XXII Rule 4 of the Code of Civil Procedure to bring on record the legal representatives of Vilvanatha Mudaliar, who were arrayed as respondents 5 to 13 in the petition, as defendants 5 to 13 in the suit. The petitioner also filed I.A.No.381 of 2010 to condone the delay of 1622 days in filing the application to bring on record the legal representatives of the deceased first defendant and filed I.A.No.382 of 2010 to set aside the abatement caused by the death of the first defendant. He also filed I.A.Nos.383 and 384 of 2010 for the same relief and all those applications were dismissed and aggrieved by the same, these revisions are filed.

3. Learned counsel for the revision petitioner submitted that immediately on coming to know about the death of the first defendant, the petitioner filed I.A.No.523 of 2005 to bring on record the legal representatives of the deceased first defendant and at that time, he was not aware of the date of death of Vilvanatha Mudaliar and the other contesting defendants also did not furnish the date of death of the first defendant and I.A.No.523 of 2005 was adjourned and during that period, he came to know about the date of death of Vilvanatha Mudaliar and therefore, filed these applications viz., I.A.Nos.381 to 384 of 2010 to condone the delay in filing the application to bring on record and to set aside the abatement and he has also stated the reason for the delay that only on 4.6.2010, he was informed by the counsel for defendants 2 to 4 that Vilvanatha Mudaliar died on 6.7.2000 and therefore, the delay was calculated from the date of filing of I.A.No.523 of 2005 and without appreciating the same, the court below dismissed those applications. He, therefore, submitted that the applications are to be allowed.

4. Learned counsel for the 10th respondent submitted that the application filed by the petitioner to set aside the abatement was rejected by the court below and that is an appealable order under Order XLIII Rule 1(k) and therefore, the revision is not maintainable. He further submitted that no request was made by the petitioner to the defendants to furnish the date of death of the first defendant and only after a request is made, the defendants are bound to give the particulars of the date of death and the particulars of the legal representatives and having failed to apply for the particulars regarding the date of death, it is not open to the revision petitioner to blame the defendants for not furnishing the date of death. He, therefore, submitted that no sufficient reason has been stated to condone the delay in filing the application to set aside the abatement and to bring on record the legal representatives and considering all these aspects, the court below rightly dismissed those applications. He also relied upon the judgment of the Honourable Supreme Court in UNION OF INDIA v. RAM CHARAN (AIR 1964 SC 215) = ((1964) 3 SCR 467) and KATARI SURYANARAYANA v. KOPPISETTI SUBBA RAO ((2009) 11 SCC 183).

5. According to me, the court below, without properly appreciating the affidavit filed by the petitioner, erred in dismissing those applications and the court below erred in holding that in the absence of any steps taken by the petitioner in ascertaining the date of death of the deceased first defendant, he cannot blame the defendants. Admittedly, on coming to know of the death of the first defendant, the petitioner filed I.A.No.523 of 2005 to bring on record the legal representatives of the deceased first defendant. No doubt, as per the provisions of Limitation Act, the legal representatives are to be brought in within a period of ninety days from the date of death of the deceased and the date of knowledge cannot be taken into consideration. Neverth