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2011 DIGILAW 2176 (RAJ)

Laxman Singh v. Suraj Kanwar

2011-10-12

VINEET KOTHARI

body2011
Hon'ble Dr. KOTHARI, J.—The defendant-petitioner (Laxman Singh), adopted son of Hukam Singh, has filed this revision petition against the order dated 20.11.2009 passed by learned trial Court whereby the learned trial court allowed the application filed by the plaintiff-respondent Smt. Suraj Kanwar D/o Smt. Rasal Kanwar and Sh. Hukam Singh, praying to be transposed as plaintiff in place of Smt. Rasal Kanwar, her mother, who died on 31.12.2007. 2. The plaintiff-applicant Smt. Suraj Kanwar claimed that even though she was on record as Performa-defendant in the said suit filed by Smt. Rasal Kanwar for cancellation of adoption deed, by which, the said Hukam Singh is said to have adopted the defendant-Laxman Singh, the right to sue continued with her as she had a registered Will dated 27.9.2002 executed by Smt. Rasal Kanwar (original plaintiff) in favour of her daughter, present respondents. plaintiff (Smt. Suraj Kanwar W/o Mahavir Singh). 3. Learned counsel for the petitioner-defendant, Mr. Bhoot submitted that the said daughter Smt. Suraj Kanwar could not be substituted in place of plaintiff-Smt. Rasal Kanwar as the right to sue does not survive in her and the learned trial court has erred in allowing the application under Order 22 Rule 3 CPC filed by her. 3. On the other hand, Mr. Sandeep Saruparia, learned counsel appearing on behalf of respondent-plaintiff relying upon a decision of Hon'ble Supreme Court in the case of Mahabir Prasad vs. Jade Ram & Ors. reported in 1971 (1) SCC 265 (Para 7) submitted that right to sue survives in the daughter Smt. Suraj Kanwar, who was already on record in the said suit, as Performa defendant on the basis of a registered Will executed in her favour by the plaintiff, her mother, Smt. Rasal Kanwar on 27.9.2002. He, therefore, submitted that learned trial Court has not committed any error in allowing the application and in fact this Court had also allowed such similar application in the earlier writ petition filed by the defenant-Laxman Singh, viz. SBCWP No. 6960/2006 (Laxman Singh vs. Additional Civil Judge (Jr. Division) Sujangarh & Ors., which writ petition of defendant was ultimately dismissed by this Court on 26.10.2009. Therefore, the learned trial court was all the more justified and barred to allow such application of the applicant- Smt. Suraj Kanwar under Order 22 Rule 3 CPC as a consequence and transposing the applicant from Performa-defendant to plaintiff. 4. Division) Sujangarh & Ors., which writ petition of defendant was ultimately dismissed by this Court on 26.10.2009. Therefore, the learned trial court was all the more justified and barred to allow such application of the applicant- Smt. Suraj Kanwar under Order 22 Rule 3 CPC as a consequence and transposing the applicant from Performa-defendant to plaintiff. 4. Having heard learned counsel for the parties and upon perusal of case laws cited at bar and after perusing the reasons given in the order impugned, this Court is satisfied that there is no error in the impugned order and the application under Order 22 Rule 3 CPC filed by the applicant-Smt. Suraj Kanwar (plaintiff-respondent No.1) has rightly been allowed by the learned trial court in the circumstances narrated in the said order. No interference is called for. 5. Accordingly, the present revision petition filed by the petitioner -defendant is found to be devoid of merit and the same is dismissed with no order as to costs. Trial may be expedited expeditiously. A copy of this order be sent to the learned trial court forthwith.