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2005 DIGILAW 199 (HP)

MEET KAUR v. CHANDER MOHAN

2005-06-21

V.M.JAIN

body2005
JUDGMENT V.M. Jain, J.—This revision petition has been filed against the order dated 7.2.2005 passed by the trial Court holding that the legal heirs of the plaintiff had no right to continue with the suit as the right to sue did not survive to them with the death of the plaintiff. Resultantly, the suit was dismissed as having abated. Aggrieved against the same, the legal heirs of Jagjit Singh, plaintiff filed the present revision petition in this Court. 2. After hearing the learned Counsel for both the parties and perusing the record, in my opinion, the present revision petition must be allowed and the order dated 7.2.2005 passed by the trial Court must be set aside. 3. Jagjit Singh plaintiff had filed a suit for declaration against the defendants to the effect that the suit property was jointly owned by the plaintiff along with Anil Kumar and Iqwal Singh defendants in equal shares being Joint Hindu coparcenary property and the alleged sale deed and its recital as well as delivery of exclusive possession got executed by defendants No. 1 and 2, namely, Chander Mohan and Narinder Mohan in their favour from defendants No. 3 to 6 through their Mukhtiar Sh. S.H.S. Bhulli on 16.11.1999 in respect of l/5th share was illegal and void being without legal necessity etc. with consequential relief of permanent injunction restraining the defendants No. 1 and 2 from interfering in the peaceful possession of the plaintiff and/or taking exclusive possession. In the alternative, Jagjit Singh plaintiff sought a decree for possession in respect of l/5th share in the suit land on payment of Rs. 25,000/- by way of pre-emption as provided under Section 22 of the Hindu Succession Act, 1956. The suit was contested by defendants No. 1 and 2. The plaintiff expired and his legal heirs filed an application under Order 22 Rule 3 CPC for bringing them on record being the legal representatives of Jagjit Singh deceased. The said application was contested by defendants No. 1 and 2. After hearing both the sides and perusing the record, the learned trial Court held that the applicants had no right to continue with the suit and me right to sue did not survive to them on the death of the plaintiff. The said application was contested by defendants No. 1 and 2. After hearing both the sides and perusing the record, the learned trial Court held that the applicants had no right to continue with the suit and me right to sue did not survive to them on the death of the plaintiff. It was further held that the suit filed by the plaintiff was not even maintainable in view of the provisions of Section 22 of the Hindu Succession Act. Accordingly, the application under Order 22 Rule 3 CPC was disposed of with the finding that the suit stood abated, vide order dated 7.2.2005. Aggrieved against the same the legal representatives of Jagjit Singh plaintiff filed the present revision petition in this Court. 4. As referred to above, the plaintiff had filed the suit for declaration and injunction. In the alternative the plaintiff had sought the decree for pre-emption under Section 22 of the Hindu Succession Act. It was not a suit for pre-emption simplicitor, as taken by the learned trial Court. It appears that while passing the impugned order dated 7.2.2005 the learned trial Court had not even bothered to go through the allegation made in the plaint and had wrongly held that the suit filed by the plaintiff was not maintainable in view of the provisions of Section 22 of the Hindu Succession Act and had also wrongly held that the legal heirs of the plaintiff did not have a right to continue with the suit as the right to sue did not survive to them on the death of the plaintiff. I am of the further opinion that the learned trial Court also erred in law in disposing the application under Order 22 Rule 3 CPC after holding that the suit stood abated. 5. As per the allegations made in the application under Order 22 Rule 3 CPC, Jagjit Singh plaintiff had expired on 29.8.2004. As per the jimni order dated 5.10.2004, copy of which is available on the record, the said application under Order 22 Rule 3 CPC was filed in the Court on 5.10.2004. Defendants No. 1 and 2 had filed the reply to the said application. After hearing both the sides the learned trial Court passed the aforesaid order dated 7.2.2005. As per the jimni order dated 5.10.2004, copy of which is available on the record, the said application under Order 22 Rule 3 CPC was filed in the Court on 5.10.2004. Defendants No. 1 and 2 had filed the reply to the said application. After hearing both the sides the learned trial Court passed the aforesaid order dated 7.2.2005. From these facts it would be clear that the sons, daughters and the widow of Jagjit Singh plaintiff had moved the application under Order 22 Rule 3 CPC within the stipulated period for being impleaded as the legal representatives of Jagjit Singh plaintiff after his death. Instead of impleading the applicants as the legal representatives of Jagjit Singh, plaintiff, the learned trial Court proceeded to hold that the suit was not maintainable and also held that the suit stood abated and accordingly the application under Order 22 Rule 3 CPC was disposed of. As referred to above, the order dated 7.2.2005 passed by the trial Court is contrary to the law and is liable to bo set aside. 6. For the reasons recorded above, the present revision petition is allowed, order dated 7.2.2005 passed by the trial Court is set aside and after allowing the application under Order 22 Rule 3 CPC filed by the sons, daughters and widow of Jagjit Singh plaintiff, they are ordered to be impleaded as the legal representatives of Jagjit Singh plaintiff and the case is remanded to the trial Court for proceeding further in the matter in accordance with law with no order as to costs. Revision petition allowed. -