Non-impleadment of legal representatives of a deceased defendant should not summarily end the proceedings, and there should be sufficient cause for condonation of delay in impleading the legal representatives.

Hemant Gupta, J. - The plaintiffs are in second appeal aggrieved against the order passed by the learned trial Court on 3.1.1978, dismissing the suit as abated and the order in appeal dated 22.1.1980 affirming the said order.

2. The plaintiff-appellants filed a suit for declaration to the effect that they are owners in possession of the land described in the plaint. It is asserted that defendant Nos. 1 to 3 acquired land by inheritance from their father Kesar Singh. The said defendants effected a private family partition and the land described under Item No. A in the head note of the plaint fell into the share of Smt. Dato defendant No. 1. She conveyed her share of land to the plaintiffs vide registered sale deeds dated 2.6.1954 and 1.12.1954. The plaintiffs thus asserted themselves to be owners and in possession of the suit land. It was pointed out that entry into the revenue record even after inheritance continued to be joint. The mutation of the entire land was not sanctioned in favour of the plaintiffs to the extent of 1/3rd share. On the other hand, defendant Nos. 2 and 3 sold the land fallen to their share in the family partition, to various persons. However, during consolidation in the year 1958, the entire holdings of defendant Nos. 1 to 3 were put into one pool, measuring 508 kanals 4 marlas. After consolidation, the plaintiffs were not delivered possession of the equivalent land purchased by the plaintiffs prior to consolidation i.e. to the extent of 2/3rd share purchased from defendant No. 1. It was, thus, claimed that the plaintiffs were entitled to get possession of the land measuring 66 kanals 19 marlas from the land allotted after consolidation, to the defendants.

3. Defendant Nos. 4 to 44 were impleaded as transferee from defendant Nos. 1 to 3. The said suit was dismissed by the learned trial Court on 13.2.1974 holding that Civil Court has no jurisdiction in view of Section 44 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948. In appeal against the said judgment and decree, the plaintiffs moved an application for impleading legal heirs of Amar Singh defendant No. 32, who died on 15.1.1974. The application to implead the legal heir was filed on 8.8.1975 under Order 22 Rule 4 CPC. The learned first Appellate Court set aside the judgment and decree passed by the learned trial Court on 12.4.1977 and remanded the case for deciding the question of abatement of suit or substitution of the legal representatives of Amar Singh, deceased.

4. In terms of the aforesaid order of the first Appellate Court, the matter was considered by the learned trial Court on 3.1.1978. The learned trial Court found that the application for impleading the legal heirs is hopelessly barred by time and it was further found that the deceased defendant was not a proforma defendant. Still further, it was held that since share of Amar Singh in the suit land is not specified, therefore, the suit is abated as a whole. Such finding has been affirmed in appeal as well. Before the first Appellate Court, the appellant relied upon statement of Puran Singh son of Amar Singh deceased, who has deposed that he is the only son of Amar Singh and that he has no interest in the suit land. Inspite of the said statement, the learned first Appellate Court returned a finding that the evidence of the plaintiffs is at variance with the pleadings raised in the plaint and, therefore, the argument that no relief was claimed against Amar Singh nor he was a necessary party, is not tenable. In view of such findings, the learned first Appellate Court upheld the order of abatement of suit.

5. The following substantial questions of law arise for consideration in the present second appeal :-

1. Whether Amar Singh defendant No. 32 is a necessary party in the suit ?

2. Whether there exist circumstances to condone delay in making an application for impleading the legal heirs of deceased Amar Singh ?

6. In respect of first substantial questi