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2005 DIGILAW 178 (PNJ)

Ujjagar Singh v. Babu Singh

2005-02-02

HEMANT GUPTA

body2005
Judgment Hemant Gupta, J. 1. The plaintiff is in revision aggrieved against the order passed by the Trial Court on 3.10.1989 whereby the application for impleading the LRs of deceased Hari Singh was declined. 2. The plaintiff Hari Singh filed a suit for recovery. The suit was dismissed in default on 29.10.1985 and that very day an application for restoration of the suit was filed. During the pendency of such application, Hari Singh died on 6.9.1987 and an application was filed on behalf of the petitioners to be impleaded as the legal representatives of the deceased on the basis of will dated 16.12.1983. Said application was resisted by the defendants inter alia on the ground that the applicants were not the legal representatives of Hari Singh. 3. The Trial Court framed an issue as to whether the applicants are the L.Rs of the deceased? In evidence, one of the attesting witness of the Will-Amar Singh appeared as AW2 and also produced Will dated 16.12.1983. The petitioners have also examined scribe AW1-Sant Singh and produced Ujjagar Singh, one of the legal representatives of Hari Singh has appeared as AW4. But the learned Trial Court dismissed the application on the ground that the application for seeking impleadment has neither been signed, thumb marked or filed by the applicants nor it has been signed by their counsel. Thus, the application dated 29.9.1987 is no application in the eyes of law and therefore, the applicants cannot be impleaded as the legal representatives of deceased Hari Singh. 4. The application for impleading the legal representatives is supported by an affidavit of one of the legal representatives namely-Hardev Singh. The power of attorney attested alongwith such application is signed by all the legal representatives. May be, inadvertently, the power of attorney has not been signed by Advocate representing the said applicants and that there can be some dispute about the signatures of the Advocate appearing on the application. But assuming that even application is not signed, the fact remains that the applicants were represented by their counsel before the Trial Court and the witnesses were examined by the said Advocate. At no stage there was repudiation to the authority of the Advocate to represent the applicants. Therefore, mere irregularity in not signing of the power of attorney or the application will not render the application as non existent. At no stage there was repudiation to the authority of the Advocate to represent the applicants. Therefore, mere irregularity in not signing of the power of attorney or the application will not render the application as non existent. Learned trial Court has gravely erred in declining such application on flimsy ground. 5. Therefore, the order passed by the learned Trial Court on 3.10.1989 is set aside. The applicants are directed to be impleaded as the legal representatives of deceased Hari Singh so as to continue with the application for restoration of the suit as well as the suit itself with no order as to costs.