ORDER
R.L. Anand. J.
1. By this order I dispose of Civil Revision Nos. 4186 and 4189 of 1998 as common question of law and fact is involved in the same. Both the revision petitions have been directed against the order dated 14.9.1998 passed by Additional Civil Judge (Senior Division). Sirsa, who allowed the application of the LRs of Major Singh for impleading them as parly to the suit in place of their father Major Singh.
2. Some facts can be noticed in the following manner:-Major Singh deceased and Khajan Singh filed a suit for possession by was of specific performance against the defendants on the basis of agreement of sale dated 6.10.1989 executed by defendant No. 1 Prem Chand in their favour with respect to the land measuring 115 kanals 9 marlas, fully described in the head-note of the plaint. Notice of the suit was given to the defendants. The suit was filed in the year 1991. Unfortunately Major Singh died on 16.11.1992. The LRs of Major Singh filed an application under Order 22 Rule 3 CPC for bringing them as LRs on 1.9.1998. Notice of the application was given to the respondents who contested the same on the ground that since the application has not been moved by the LRs within 90 days from the date of death of Major Singh, therefore, the suit should abate as a whole. The parties addressed arguments before the trial Court and for the reasons given in paras 5 to 7 of the impugned order it allowed the application of the LRs.
3. Aggrieved by the said order, the present revision.
4. I have heard the learned Counsel for the parties and with their assistance have gone through the record of the case.
5. Before I deal with the submissions raised by the learned Counsel for the parties, it will be appropriate for me to reproduce paras 5 to 7 of the impugned order which read as under :-
“5. Learned counsel for the plaintiff has argued that in view of the amendment made in sub-rule (2) of Rule 3 of Order XXII of the Code of Civil Procedure, 1908 vide notification dated 4.2.1992, suit does not abate even if the applicants have not moved application within 90 days. Sub-rule (2) of Rules 3 of Order XXII of Code of Civil Procedure, 1908 after the amendment now runs as follows :
“Where within the time limited by law no application is made under sub-rule (1) the suit shall not abate as against the deceased plaintiff and the judgment may be pronounced notwithstanding his death which shall have the same effect as if it has been pronounced before the death took place, and the contraci between the deceased and the pleader in that event shall continue to subsist.”
It is clear from the reading of the aforesaid rule that after the amendment the suit shall not abate as against the deceased plaintiff and the judgment may be pronounced notwithstanding his death which shall have the same effect as if it has been pronounced before the death took place. So even if the application is made after the expiry of 90 days, that shall have no effect on the merits of the case.
6. Learned counsel for the defendants, on the contrary vehemently argued that application is governed by Article 120 of Limitation Act which prescribes the limitation of 90 days. In support of his case he relied upon case law Deepka Industries v. Sakha Nand, 1993(3) RCR (Civil) 415, Mohan Lal and others v. Karam Chand and others, 1994(2) LJR 55 : 1994(2) RCR (Civil) 276 (P&H), Prabhu Dayal v. Bahadur, 1993(1) RCR (Civil) 102 and Papanna and others v. State of Karnataka, 1996(3) LJR 10. The ratio laid down in ail the cases mentioned above is not applicable to the facts of the present case.
7. It has been made clear by the Hon’ble High Court in case Bijja v. Raja Ram and others, 1998 HRR 82 at 83 : 1998(2) RCR(Civil) 219 (P&H) that amendment in Order 22 Rule 3 of the Code was brought in the year 1992 according to which bringing of L.Rs. of deceased appellant on record was not necessary and amendment cannot be applied retrospectively. The amendment which took place in Order 22 Rule 3(2) of C.P.C. vide notification dated 4.2.1992 has no retrospective effect and prior to this notification, the application like the present one, should have been filed within 90 days and the limitation was governed by Article 120 of Limitation Act. In Deepka Industries case (supra) plaintiff died in April, 1989 and the application was moved in his LRs. on 8.11.1989. In Mohan Lal’s case (supra) plaintiff died on 4.4.1991 and the application by LRs. was filed on 16.8.1991. In Prabhu Dayal’s case (supra) appellant died in the year 1985 and application for bringing his legal representatives on record made in 1992. So, it is clear that in all these cases, the plaintiff or appellant died before the notification dated 4.4.1992 and it was only in
these circumstances the Hon’ble High Court did not allow the application of applicants as it was not moved within 90 days as was the law before notification dated 4.2.1992. But in the present case, Major Singh plaintiff No. 2 has died on 16.11.1992. So after amendment under Order 22 Rule 3(2) C.P.C. vide notification dated 4.2.1992 applicants now can move application for impleading them as legal representatives of the deceased plaintiff.”
6. The learned Counsel appearing on behalf of the petitioners vehemently submitted that the amendment made by the High Court in Order 22 Rules 3 and 4 of Civil Procedure Code is illegal and without jurisdiction as through this amendment the High Court has overridden the provisions of the Limitation Act which is a Central Act. In support of his contention, the learned Counsel for the petitioners has referred to Abdul Ganny v. Mr I.M. Russell, AIR 1930 Rangoon 228, where it was observed as follows :-
“The High Courts, are not entitled by rules to abrogate or vary the period of limitation set out in the Limitation Act, in respect of proceedings to which the provisions of Limitation Act, apply.”
7. The learned Counsel for the petitioners further submitted that in the judgments which have been relied upon by the court below this aspect of the case was never examined. Even the High Court did not examine the point of limitation and the provisions of Limitation Act in the various judgments which are sought to be relied upon by the learned Counsel for the respondents.
8. On the other hand, the learned Counsel for the respondents submit that by virtue of amendment made by the High Court in Order22 Rules 3 and4 C.P.C., the suit could not abate and more so in the present facts when the agreement of sale was also jointly and severally executable in favour of Khajan Singh and Major Singh.
9. I have considered the rival contentions of the parties and am of the opinion that the contention raised by the learned Counsel for the petitioners is without any merit. Section 122 CPC lays down as follows :-
“High Court not being the Court of a Judicial Commissioner, may, from time to time after previous publication, make rules regulating their own procedure and the procedure of the Civil Courts, subject to their superintendence and may by such rules annul, alter or add to all or any of the rules in the First Schedule.”
10. The High Court in exercise of powers under Section 122 CPC made the amendment in Order 22 Rule 3(1) CPC and this amendment came into force w.e.f. 4.2.1992. As per the amendment, where one of two or more plaintiffs dies and right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the Court, on an application in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. Sub-rule (2) of Rule 3 further lays down as follows :-
“Where within the time limited by law no application is made under sub-rule (1), the suit shall not.abate as against the deceased plaintiff and the judgment may be pronounced notwithstanding his death which shall have the same effect as if it has been pronounced before the death look place, and the contract between the deceased and the pleader in that event shall continue to subsist.”
11. Reverting to the provisions under Section 122 CPC, again, it will show that the High Court can make such rules, regulations regulating its own procedure and the procedure of the Civil Courts from time to time. So much so, it has the power to annul, alter or add to ail or any of the rules in the First Schedule. Earlier to the amendment it was obligatory on the part of the LRs to make application within 90 days and if no such application is moved within the expiry of 60 days, thereafter the suit was liable to be dismissed as having been abated. To overcome this difficulty the High Court regulated its own procedure and made the amendment in Rules 3 and 4 for the benefit of the litigant public and for the protection of suits so that such suits may not abate on the ground of limitation. This aspect of the case rather, in my opinion, was not considered by the Hon’ble Judges of the Rangoon High Court in the judgment relied upon by the learned Counsel for the petitioners. Rather, this aspect of the case was considered by this High Court earlier in the judgment reported as Saraswati and others v. Hazari Lal and others, 1989 PLJ 670 : 1990(1) RCR (Civil) 55 (P&H), where it was observed by His Lordship in para No. 2 of the judgment as follows :-
“It is no more disputed that there was no limitation for bringing on record the legal representatives of the deceased defendant in view of the amendment of this Court in Order, Rule 4, CPC, vide Punjab Government Gazette, 11.4.1975, Part II, wherein it has been provided that if within the time limited by law, no application is made under sub-rule (1) the suit shall not abate as against the deceased-defendant and judgment be pronounced notwithstanding the death and shall have the same force and effect as if it had been pronounced before the death took place. That being so, the question of abatement does not arise and the legal representatives were entitled to be brought on the record at any time.”
12. Again this point came up for consideration before this High Court in Norata Singh v. Sawaya Singh (deceased), 1992 PLJ 302 : 1992(1) RCR (Civil) 271 (P&H), and in paras 6 and 7 it was replied as under :-
“6. Both the Courts below have not taken notice of the amendment of Order Rule 4 of the Code of Civil Procedure, made by the High Court. Under similar circumstances. J.V. Gupta, J. (as he then was), in a judgment Saraswati and others v. Hazari Lal and others, 1989 Punjab Law Journal
670, held as under:-
“It is no more disputed that there was no limitation for bringing on record the legal representatives of the deceased-defendant in view of the amendment of this Court in Order 22 Rule 4, CPC, vide Punjab Government Gazette, 11.4.1975, Part II, wherein it has been provided that if within the time limited by law, no application is made under sub-rule (1) the suit shall not abate as against the deceased-defendant and judgment be pronounced notwithstanding the death and shall have the same force and effect as if it had been pronounced before his death took place. That being so, the question of abasement does not arise and the legal representatives are entitled to be brought on the record at any time.”
7. In view of the amendment made by this Court in Order 22 Rule 4 of the Code of Civil Procedure and the law laid down in Saraswati’s case (supra), this revision petition succeeds, the impugned orders are set aside and the application for bringing on record the legal representatives of deceased-defendant is allowed. There would be no order as to costs.”
13. Moreover, in the present case the suit was filed by Khajan Singh and Major Singh. In no eventuality the suit could have been abated because the cause of action has survived to the co-plaintiff Khajan Singh. Be that as it may, I am of the opinion that there is no illegality or impropriety in the impugned order. Therefore, the revision is hereby dismissed with no order as to costs.
14. Revision dismissed.