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2010 DIGILAW 1241 (RAJ)

Ramdhan v. Phodi

2010-07-16

G.K.TIWARI

body2010
TIWARI, M.—This is a revision petition under Section 230 of the Rajasthan Tenancy Act, 1955 (in short `the Act') against the impugned order dated 6.7.2000 of Assistant Collector Karauli. 2. Briefly stated, the facts of the case are that Moola son of Lohre filed a suit against the petitioner-defendant for division of disputed holdings under Section 53 of the Act in the court of Sub-Divisional Officer Karauli. During the course of trial thee plaintiff died. The application for bringing legal representatives of the deceased plaintiff Moola was filed after six months. The legal representatives also filed an application for condonation of delay and setting aside of the abatement. The applicants filed under Order 22 Rule 3, 9, 10 and 11 read with Section 151 and Section 5 of the Limitation Act were allowed by the trial Court on the cost of Rs. 100/- vide the impugned order dated 6.7.06 against which the revision is preferred in this court. 3. I have heard the learned counsels of both the parties. 4. The learned counsel for the petitioner has contended that inspite of the fact that information of the death of the plaintiff was given on 16.12.1995, the application for bringing legal representatives on the record was made after a delay of six months, so the suit gets automatically abated. The application filed under Section 5 of the Limitation Act is unspecific giving insufficient reason so the application for condonation of delay should have been rejected along with application for setting aside of the abatement as well as bringing the legal representatives of the deceased plaintiff on record. The learned counsel cited 2009(1) RRT 68 and 2009(1) RRT 488 = RLW 2009(1) RJ 201 in support of his contention. 5. Opposing the contentions of the petitioner, the learned counsel for the non-petitioners submitted that the legal representatives belong to rural background. There is delay of only six months in filing the application for the want of their knowledge about which the reasons given in application under Section 5 of the Limitation Act are sufficient to condone the delay. A suit for division of holdings never gets abated. The trial Court has allowed the application on cost of Rs. 100/- so there is nothing illegal about the impugned order which should be upheld. 6. A suit for division of holdings never gets abated. The trial Court has allowed the application on cost of Rs. 100/- so there is nothing illegal about the impugned order which should be upheld. 6. I have given thoughtful consideration to the rival contentions, perusal the impugned order and gone through the matrial on record. 7. The bone of contention in the present case is that the application for bringing the legal representatives of the deceased plaintiff on record was filed six months after the death of the plaintiff. The main reason given for condonation of the delay is that the legal representatives of the deceased plaintiff were unaware of the present suit which was filed by their grandfather Moola and as soon as this information was given by concerned advocate that legal representatives of the deceased have to be brought on record, the petitioners filed the application to meet the necessary legal provisions. 8. This reason, looking to the rural background of the non-petitioners and want of their knowledge, is sufficient to condone the delay; so the trial court did not commit any illegality in exercising his discretion for condonation of delay of six months in the interest of justice. It is significant to observe here that according to Order 22 Rule 1 of the Civil Procedure Code, death of plaintiff or defendant or defendant does not cause the suit to abate if the right to sue survives. The suit under consideration is about division of the agriculture lands (holdings) among the co-tenants. The right to seek division or partition in the lands of co-tenancy is a continuous right; and this right survives even after death of the plaintiff or defendant. Therefore, no illegality was committed by the trial Court in setting aside the abatement under Order 22 Rule 9 of the CPC and bringing the legal repre-sentatives of deceased plaintiff on record under Order 22 Rule 3 of the CPC. 9. The learned counsel for the petitioner cited 2009(1) RRT 68. With all due regards to this citation, it is humbly submitted that in the given citation no application for bringing the legal representatives on record was filed before the first appellate court when the concerned respondent had died, therefore, Hon'ble High Court of Rajasthan did not allow the prayer in the second appeal. In this case the facts and circumstances are altogether different. In this case the facts and circumstances are altogether different. Here the suit is yet undecided and pending before the trial Court when the plaintiff died and the application for bringing the legal representatives along with the application for condonation of delay was filed before the trial Court only, and not in the appellate court. As such this citation with utmost regard to it, is not applicable in the case under consideration. Similarly, 2009(1) RRT 488 does not apply here as delay therein was of three years and no sufficient cause was given for condonation of delay. But in the given case delay is of six months only and sufficient cause is stated in the application for condonation of delay under Section 5 of the Limitation Act as stated above. Thus, this citation is not applicable in this case. 10. In view of the aforesaid discussion there is no merit in the revision which stands dismissed. 11. Resultantly, the revision is dismissed. Pronounced.