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2006 DIGILAW 1625 (ALL)

BHAWAN CHANDRA MEHRA v. RAVINDRA KUMAR

2006-07-10

S.P.MEHROTRA

body2006
JUDGMENT Hon’ble S.P. Mehrotra, J.—A perusal of the Office Report dated 12.4.2006/3.7.2006 (Item No. 1) shows that the notices were issued to the plaintiffs-appellants No. 1, 2 and 3 by Registered Post A.D., to engage another Counsel. 2. The said Office Report further shows that the Registered Envelop wherein the said notice was sent to the plaintiff-appellant No. 1 has been received back with the endorsement to the effect that the plaintiff-appellant No. 1 (Bhawan Chandra Mehra) had expired. 3. As regards the notices issued to the plaintiffs-appellants No. 2 and 3, the said Office Report shows that the said notices have been duly served, and the Acknowledgment Cards have been received back. 4. It further appears that Civil Misc. (Abatement/Dismissal) Application No. 5499 of 2004, has been filed on behalf of the defendants-respondents No. 1, 2 and 3. 5. It is, inter alia, prayed in the said Abatement /Dismissal Application that the Second Appeal at the instance of the plaintiff-appellant No. 1, be abated and the Second Appeal at the instance of the plaintiffs-appellants 2 and 3, be dismissed in view of the Affidavit of Compromise filed as Annexure No. 2 to the Affidavit accompanying the aforementioned Abatement/ Dismissal Application. 6. The aforementioned Abatement/ Dismissal Application is accompanied by an Affidavit, sworn by Mehtab Singh (defendant-respondent No. 3) on 12.1.2004. It is, inter alia, stated that in the said Affidavit accompanying the aforementioned Abatement/Dismissal Application that the plaintiff-appellant No. 1 (Bhawan Chandra Mehra) died on 17.6.1993, and that no Substitution Application has been moved for bringing on record the heirs and legal representatives of the plaintiff-appellant No. 1. 7. Photostat copy of the death certificate dated 18.6.1993 in respect of Bhawan Chandra Mehra, son of Sri Chandra Mehra, has been filed as Annexure 1 to the said Affidavit. 8. Sri A.K. Sachan, learned Counsel for the defendants-respondents states that in fact the correct name of the plaintiff-appellant No. 1 was Bhagwan Chandra Mehra, son of Sri Chandra Mehra but it has incorrectly been described as Bhawan Chandra Mehra in the Memorandum of Second Appeal. 9. 8. Sri A.K. Sachan, learned Counsel for the defendants-respondents states that in fact the correct name of the plaintiff-appellant No. 1 was Bhagwan Chandra Mehra, son of Sri Chandra Mehra but it has incorrectly been described as Bhawan Chandra Mehra in the Memorandum of Second Appeal. 9. It is, inter alia, further stated in paragraph No. 3 of the said Affidavit accompanying the aforementioned abatement/Dismissal Application that compromise has been made with the defendants-respondents, and the Affidavit of Compromise in regard to the same, sworn before the Public Notary on 12.12.2003, is being filed as Annexure-2 to the said Affidavit accompanying the aforementioned Abatement/Dismissal Application. 10. A perusal of Annexure 2 shows that the same purports to be an Affidavit, sworn jointly by Lakshman Chandra Mehra, son of Bhagwan Chandra Mehra and Purshottam Chandra Mehra, son of Bhagwan Chandra Mehra on 12.12. 2003. 11. Sri A.K. Sachan , learned Counsel for the defendants-respondents states that the said Lakshman Chandra Mehra is the plaintiff-appellant No. 3 in the Second Appeal, and his name has wrongly been described as Lakshmi Chandra Mehra in the Second Appeal. 12. Sri Sachan further states that the said Purshottam Chandra Mehra is the plaintiff-appellant No. 2 in the Second Appeal. 13. It is, inter alia, stated in the Joint Affidavit, sworn on 12.12.2003, that the said Lakshman Chandra Mehra and Purshottam Chandra Mehra are the sons of Bhagwan Chandra Mehra ; and that both the parties to the Second Appeal have compromised the matter; and that the said Lakshman Chandra Mehra and Purshottam Chandra Mehra would no longer prosecute the Second Appeal; and that the Second Appeal may be dismissed , to which the said Lakshman Chandra Mehra and Purshottam Chandra Mehra would have no objection ; and that the notices to engage another Counsel, sent from the High Court, have been received by the said Lakshman Chandra Mehra and Purshottam Chandra Mehra ; and that as the matter has already been compromised, they have not engaged another Counsel to represent them in the Second Appeal. 14. By the order dated 16.2.2004, notices were directed to be issued on the aforementioned Abatement/Dismissal Application. 15. The said Office Report dated 12.4.2006/3.7.2006 (Item No. II) shows that the notices were, accordingly, issued to the plaintiffs-appellants No. 1,2 and 3 by Registered Post A.D. on the aforementioned Abatement /Dismissal Application. 16. 14. By the order dated 16.2.2004, notices were directed to be issued on the aforementioned Abatement/Dismissal Application. 15. The said Office Report dated 12.4.2006/3.7.2006 (Item No. II) shows that the notices were, accordingly, issued to the plaintiffs-appellants No. 1,2 and 3 by Registered Post A.D. on the aforementioned Abatement /Dismissal Application. 16. The Registered Envelop wherein the notice was sent to the plaintiff-appellant No. 1, has been received back with the endorsement to the effect that the plaintiff-appellant No. 1 (Bhawan Chandra Mehra) had expired. 17. As regards the notices issued on the aforementioned Abatement/Dismissal Application to the plaintiffs-appellants No. 2 and 3 , the same have been duly served, and the Acknowledgment Cards have been received back. 18. I have heard Sri A.K. Sachan, learned Counsel for the defendants-respondents, and perused the record. 19. In view of the said Office Report dated 12.4.2006/3.7.2006 as also in view of the averments made in the aforementioned Abatement/Dismissal Application and its accompanying Affidavit , it is evident that the plaintiff-appellant No. 1 (Bhawan Chandra Mehra, whose correct name, according to Sri A.K. Sachan learned Counsel for the defendants-respondents, is Bhagwan Chandra Mehra) has already expired. 20. Averments made in paragraph 2 of the said Affidavit, accompanying the aforementioned Abatement/Dismissal Application, further show that the death of the plaintiff-appellant No. 1 took place on 17th June, 1993. 21. No Substitution Application appears to have been filed for bringing on record the heirs and legal representatives of the plaintiff-appellant No. 1 (Bhawan Chandra Mehra, whose correct name, according to Sri A.K. Sachan, learned Counsel for the defendants-respondents, is Bhagwan Chandra Mehra). 22. In view of the above, the Second Appeal at the instance of the plaintiff- appellant No. 1 stands abated. 23. As regards the plaintiffs-appellants No. 2 and 3, the said Office Report dated 12.4.2006/3.7.2006 shows that the notices issued to them to engage another Counsel as well as the notices issued to them on the aforementioned Abatement/Dismissal Application have been duly served. 24. The said fact regarding receipt of the notice to engage another Counsel , has been accepted by the plaintiffs-appellants No. 2 and 3 in the above-mentioned Joint Affidavit, purported to have been sworn by them on 12.12.2003. 25. 24. The said fact regarding receipt of the notice to engage another Counsel , has been accepted by the plaintiffs-appellants No. 2 and 3 in the above-mentioned Joint Affidavit, purported to have been sworn by them on 12.12.2003. 25. Despite service of notice having been effected on the plaintiffs-appellants No. 2 and 3, they have not put in appearance in the Second Appeal on the ground that the matter has already been compromised. 26. Whatever may be the reasons for the plaintiffs-appellants No. 2 and 3 for not putting in appearance in the Second Appeal, the fact remains that despite service having been effected on them, they have not put in appearance in the Second Appeal. 27. In the circumstances, the Court has no option, but to dismiss the Second Appeal at the instance of the plaintiffs-appellant Nos. 2 and 3 for want of prosecution. 28. The Second Appeal at the instance of the plaintiffs-appellants No. 2 and 3 is accordingly dismissed for want of prosecution. 29. The Second Appeal at the instance of the plaintiff-appellant No. 1 stands dismissed as having been abated, as mentioned above. 30. In view of the above, the Second Appeal is dismissed. Appeal Dismissed. ———