P (PLP)

Constantine J.

‑The plaintiff‑Appellant filed a suit Against his two sons. Ahmedhshah and Ibrahimshah, for partition of certain properties, which had come to the parties by inheritance. Ibrahimshah, defendant 2, died, on 26th December 1942. On 11th January 1943 the plaintiff filed an application entitled as under O. 22, Rr. 3 and 4, Civil P, C., requesting the Court to join as heirs of the deceased his son:, two daughters and widow. On 25th January 1943, the Court stated that defendant 1 had no objection and ordered that the persons mentioned in the application should be joined as legal repre3entatives of defendant

2. On 5th April 1943, the plaintiff made an application under O. 22, R. 5 and S. 151, Civil P. C., stating that through mistake in his previous application the plaintiff had not shown himself as an heir of the deceased, Ibrahimshah, and praying that he should be added as the legal representative. The learned SubJudge dismissed that application on the ground that it had been made more than 90 days after the date of Ibrahimshah's death, which be found had occurred on 26th December 1942, a finding which has not been challenged by the appellant, as he was the learned judge relied upon Khodadad v, Brai Jerbai, I. L. R. (1938) Born.

64. But this decision of Engineer J, sitting alone, has been overruled by a Division Bench of Bombay High Court in N.iranlal v Shivprasad, A. I. R. (27) 19+0 Bom.

259. In this latter case the plaintiff' sued to recover possession of certain property as the reversioner of the previous owner. The plaintiff died and his three sons were brought on record as heirs. It was contended that besides the three sons the plaintiff had left a widow named Bai Hira. But she also died within less than 90 days from the date of plaintiffs death and her heirs were the three sons of the plaintiff who were already on the record. In that case these sons were plaintiffs, as legal representatives whether of their father or their mother. In the present case the plaintiff was on record already as plaintiff but not as a legal representative of the deceased defendant. We do not think, however, that this difference in the facts makes difference in the principle to be applied since Rr. 3 and 4 of O. 22 speak of making a legal representative a party, and whether a litigant is a plaintiff of defendant, he is a party to the suit. As Sir John Beaumont C. J. said: ..if a party is on the record, he can appear ..and make any representation which seems good to him, whether in one capacity or in tore than one capacity, and being on the record, it is competent to him to put in a plaint or defence stating his attitude in the different, capacities in, which he is suing or being sued. On its being brought to the notice of .the Court that the record does not show that he is suing or being sued in more than one capacity, it is the duty of the Court to have the record amended. But an amendment of that sort can be made at any time, and if an application were made to strike out a pleading on the ground that the interest of the party pleading was not properly shown on the record, the Court would amend the record, and not strike out the pleading.. ..there is no justification for enlarging the words of O 22, R. 3 so as to cover a case where all that is required is formal amendment of the record, and not the addition of stew parties; With respect we agree with this view of b. 22, R. 3 and consider that this principle applies equally to O. 22, R. 4. (2) The application on 5th April 1943, in which the plaintiff applied to be brought on record as a legal representative, was within 150 days from the death of Ibrahimshah on 26th December 1942. In Hassomal, Hardasmal v. Pirbux and others, 26 S. L. R. 81 Milne J. C. delivering judgment of the Division Bench stated : Even if we were to regard that application (under 0. 2,2, R. 9) as time barred, there was still the application O. 22, R. 4, pending which according to the finding of the learned judge was made after the suit had abated and in view of the ruling in Hari Saran Singh and other's v. Syed Muhammad Eradat Hussain, 85 I. C. 1010. we are of opinion, that it would be open to us to consider the pending application under O. 22, R, 4 as an application under Order XXII,

9. The learned Judicial Commissioner also stated that the Court has wide powers to set aside such an abatement and these powers should be used somewhat liberally unless there is clear proof of laches. (3) We, therefore, set aside the order of the learned Sub‑Judge refusing to set aside the abatement and in lieu thereof we set aside the abatement. The respondent Ahmadshah will bear the costs of the appellant of this appeal. A. H. Appeal allowed: