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2002 DIGILAW 1825 (RAJ)

Basanti v. Nana Lal

2002-11-12

B.S.CHAUHAN

body2002
Honble CHAUHAN, J.– This revision petition has been filed against the order dated 1.2.2002 by which the learned trial Court has allowed the application of the non-petitioner under Order 22 Rule 3 CPC and substituted the plaintiff by his legal representatives. (2). The facts and circumstances giving rise to this case are that suit had been filed by the predecessor in interest of the non-petitioners Nana Lal for redemption of mortgage and possession of the suit property 25.10.1996. The suit is being contested by the defendant-petitioner and filed written statement denying all the averments made in the plaint. However, during the pendency of the suit, the plaintiff Nana Lal died and his legal representatives had been brought on record while allowing the application under Order 22 Rule 3 CPC. (3). This revision petition has been preferred on the ground that the suit property belongs to the temple and, therefore, the suit itself is not maintainable in the name of Nana Lal. Therefore, the issue of substitution could not arise without deciding the issue under Order 22 Rule 5 CPC for the reason that in the revenue record and jamabandi, the suit property belong to Shri Rudreshwar Mahadeo Temple and Nana Lal, at the most, could have the next friend of the deity. (4). The application has been rejected by the trial Court considering the averments that Nana Lal was merely a pujari of Temple Rudreshwar Mahadeo and the legal representatives could not be substituted as they are not pujaries. The Court also took note of the submissions made by the defendant-petitioners counsel that before allowing the application of substitution of legal representatives, it was necessary to give opportunity of hearing to the Devsthan Department of Rajasthan. The trial Court rejected those submissions on the ground that undoubtedly in the mortgage- deed, the property had been shown to be belonging to the Rudreshwar Mahadeo but as this suit had been filed by Nana Lal as plaintiff in individual capacity, the Court cannot go into the issue at this stage while considering the application for substitution of legal representatives. The original plaintiff died on 8.6.2000 and application for substitution of legal representatives was filed on 4.9.2000 and the objections raised by the defendant-petitioner had already been taken in the written statement and issue had also been framed to the effect that if the property belongs to Temple Rudreshwar, whether the suit could have been filed in individual capacity by Nana Lal. The Court has held that it was not possible to take into account all those facts at the time of considering the application for substitution of legal representative nor the issues as to whether the suit could have been filed or not be determined at this stage. Therefore, the application was rejected. (5). Shri S.L. Jain, learned counsel for the petitioner, has raised the same issues which had been raised before the Court below. However, he could not point out that there had been pleading in the written statement to the effect that the Temple to which the property is purported to belong is a public temple nor there is a pleading in the written statement that the suit was not maintainable for non-joinder of necessary party as Devsthan Department of Rajasthan should have been impleaded. In absence of such ``pleadings the issues raised by Shri jain are not sustainable. The issue as to whether the suit could have been filed in an individual capacity by Shri Nana Lal is yet be decided. Mere allowing the application for substitution of legal representatives would not affect the merit of the that issues. (6). Thus, I am of the considered opinion that while allowing the application for substitution of legal representative, the Court has not committed any jurisdictional error which may require interference by this Court in revisional jurisdiction. The revision petition is, therefore, dismissed accordingly.