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Miscellaneous Appeal No. 34 of 1956, decided on 11^th December 1957.

, O. XXII, rr. 2 and 4 ‑Rule 2 inapplicable where surviving plaintiffs or defendants are not the only persons in whose favour or against whom right to sue or be sued survives.

Rule 2 of Order XXII, Civil P. C. is not applicable when the surviving plaintiffs or defendants are not the only persons in whose favour or against whom the right to sue or to be sued survives.

Where there were three heirs of the deceased defendant, and only one of them was already on the record as defendant, the rule was inapplicable. The rule which applies to such a case is rule 4 of Order XXII, Civil P. C. and in the presence of sub‑rule (3) of that rule, it was necessary to bring the other heirs on the record to save the suit from abating.

The expression "legal representative" in the singular occurring in rule 4, includes, according to the General Clauses Act (X of 1897) the plural. It was therefore necessary that all the legal representatives ought to have been brought on the record.

Sidik Muhammad Shah v. Mst. Saran and others A I R 1925 Sind 2 rel.

Muhammad Zafaryab Khan v. Abdul Razzac Khan and others A I R 1928 All. 532 ; Mulchand Hemraj v. Jairamdas Chaturbhuj and others A I R 1935 Bom. 287 ; Khuda Bakhsh and others v. Narain Das and others 18 I C 44 and Hakam Ali and others v. Shiv Narain and others A I R 1933 Lah. 765 distinguished.

, O. XXII, r. 9 (3) Application for setting aside abatement‑Delay of each day must he explained.

In the case of an application for setting aside abatement, delay of every day beyond the period of limitation should be satisfactorily explained by the applicant.

Where plaintiff's counsel came to know of the death and names of legal heirs of a defendant respectively on the 27th of April 1954 and 22nd of July 1954 (defendant's death having taken place on 15th December 1953) and he made an application for setting aside abatement of the suit on the 19th August 1954, the delay not having been satisfactorily explained ;

Held, that the application was rightly dismissed.

Castellino for Appellant.

Tarachand for Respondent 2.

Respondents i (a) and 1 (b) absent.

--‑ This appeal arises from the order dated the 13th of February 1956, passed by Inamullah, J., dismissing the application of the appellant for setting aside the abatement of the suit against Mst. Azima and for bringing three persons, namely, Jaffar, Ahmed Khan and Mst. Zohrabai on the record as heirs and legal representatives of the deceased Mst. Azima. It is admitted that Mst. Azima, defendant No. 3, died on the 15th of December 1953 ; but the appellant's counsel came to know of her death on the 27th of April 1954. He made enquiries regarding her death and her heirs from the Advocate of the deceased who was good enough to give him the necessary particulars by his letter dated the 22nd of July 1,954. He applied on the 19th of August 1954 for bringing the three persons on record. The application was opposed by Haji Mamoo defendant No. 2 on the ground that it ought to have been made within 90 days from the date of the death of Mst. Azima, that it was the duty of the applicant as the plaintiff in suit to keep himself informed of the necessary facts for discharging his responsibility under law and that he was careless in not doing anything for a long time to find out whether Mst. Azima was alive or dead. It was contended that the deceased's counsel was not bound to supply the information which he did supply. The appellant however came into possession of the facts on the 27th of July 1954. It was his duty then to take steps immediately to bring the legal representatives on record but he did not make the required application for about two months afterwards. It was argued that this delay of about two months was without any excuse whatsoever, as there was no satisfactory explanation as to why so much time was allowed to pass by and an application was not made to bring the legal representatives on the record. The proposition of law on which reliance was placed is contained in Chuni Lal‑Tulsi Ram v. Amin Chand and another (I L R 14 L0. 543) and it is to the effect that the delay for every day beyond the period of limitation should be satisfactorily C explained by the applicant. The trial Court accepted this pro position and dismissed the application for excusing the delay and for setting aside the abatement.

The learned counsel for the appellant has advanced two propositions of law against the order. He has firstly contended that it is not necessary that all the legal representatives of a deceased person should be brought on the record and that it is enough if one of them is made a party to the suit. For this proposition he has relied on the expression "legal representative", in singular, which occurs in rule 4 of Order XXII, Civil P. C. and has supplemented this argument by another proposition of law namely that no application need be made when a legal representative is already on the record in any other capacity, and has on the basis of these two propositions contended that since one of the legal representatives, namely Ahmed Khan, happened to be a defendant before the death of Azima, an entry ought to have been made to this effect on the record and the suit ought to have been allowed to proceed without any order for setting aside the abatement.

These contentions of the learned counsel for the appellant are contrary to the provisions of the Code of Civil Procedure. The proposition, that a legal representative, who happens to be on the record need not again be brought on the record, is contained in rule 2 of Order XXII, Civil P. C. The rule is as follows :‑

"Where there are more plaintiffs or defendants than one, and any of them dies, and where the right to sue survives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the Court shall cause an entry to that effect to be made on the record, and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants".

The word, alone occurs in this rule at two places and should not be missed. It means that the rule is not applicable when the surviving plaintiffs or defendants are not the only persons in whose favour or against whom the right to sue or to be sued survives. In the present case, Azima admittedly left 3 heirs one of whom namely, Ahmed Khan only happened to be on the record at the time of her death. If he was alone the defendant against whom the right to sue had survived then there was no need to make an application for bringing him again on record, but as it was the right to sue admittedly did not survive against him alone. This rule, therefore, is not applicable to the facts of this case. The rule which applies to the facts of this case is rule 4 of Order XXII, Civil P. C. and it is specifically laid down in sub‑rule (3) of this rule that :‑

" Where within the time limited by law no application is made under sub‑rule (1), the suit shall abate against the deceased defendant."

In the presence of this sub‑rule it is idle to argue that no applica tion was necessary for bringing the legal representatives on the record.

It is true that the expression, which occurs in sub‑rule (1) is legal representative' but according to the General Clauses Act, singular includes plural and plural includes singular. The expression in singular, therefore, should be interpreted to include its plural and thus it was necessary that all the legal representatives ought to have been brought on the record. This is obvious, but if an authority is needed, it is to be found in Sidik Muhammad Shah v. Mst. Saran and others (A I R 1925 Sind 2).

The learned counsel for the appellant has relied on Muhammad Zafaryab Khan v. Abdul Razzac Khan and others (A I R 1928 All. 532), Mulchand Hemraj v. Jairamdas Chaturbhuj and others (A I R 1935 Born. 287), Khuda Bakhsh and others v. Narain Das and others (18 I C 44) and Hakam Ali and others v. Shiv Narain and others (A I R 1933 Lah. 765) and has argued on their basis that if one legal representative alone is brought on the record then it is not necessary that all the other legal representatives should be impleded. The principle of these rulings has not been properly appreciated by the learned counsel. The Allahabad and the Bombay judgments are based upon the provisions of rule 5 of Order XXII, Civil P. C. The rule is as follows :‑

" Where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant, such question shall be determined by the Court."

According to this rule the question, as to whether any person is or is not a legal representative of a deceased plaintiff or defendant, is to be determined by the Court. Once the Court has determined the question it cannot be reopened on the ground that somebody was wrongly held to be a legal representative or somebody was wrongly not held to be a legal representative. The object of the rule is to put an end to the controversy so that the trial of the suit may not be protracted indefinitely by applica tions made from time to time as to whether all the legal repre sentatives have been correctly brought on the record or not. The Punjab ruling reported in 18 I C 44, deals with a joint Hindu family and is not relevant for the present purpose. The Lahore ruling of 1933 does not decide the question, because, the learned single Judge was in disagreement with a previous Division Bench ruling and proceeded to extend the time for bringing the legal representatives on the record on the facts of the case.

The conclusion is that it was necessary for the appellant to make an application for bringing the legal representatives, named by him, on the record and to get the abatement of the suit set aside against Mst. Azima and that the delay in making the application from the 22nd of July 1954 to the 19th August 1954, having not been satisfactorily explained, the application was rightly dismissed.

The appeal is accordingly dismissed with costs.

A.H. Appeal dismissed.

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