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2012 DIGILAW 1574 (RAJ)

Kedar Gurjar v. Ram Nath

2012-07-17

PRASHANT KUMAR AGARWAL

body2012
JUDGMENT : Prashant Kumar Agarwal, J. Heard learned counsel for the parties. 2. The plaintiff-petitioner has preferred this Civil revision petition under Section 115 of the Code of Civil Procedure against the order dated 04.08.2009 passed by the Civil Judge (Junior Division), Niwai, (District Tonk) in Civil Suit No.9/2007 whereby the learned Court below has dismissed the application under Order 22 Rule 4 Civil Procedure Code filed by the petitioner and as a consequence thereof abated the suit to the extent of deceased defendant Shri Ram Nath. 3. Brief relevant facts for the disposal of the revision petition are that the plaintiff-petitioner filed a suit for specific performance and permanent injunction against the defendant Shri Ram Nath and the non-petitioners. It is an admitted fact that after the service of summons the defendant Shri Ram Nath appeared before the Court below and alongwith other defendants filed joint written statement and during the pendency of the suit he died on 13.08.2007. The petitioner filed an application on 06.12.2007 with prayer that the remaining defendants may be directed to provide the particulars of the legal representatives of the deceased defendant. It is an admitted fact that application remained pending and no order or direction was passed by the Court below upon the same. Subsequently, the petitioner filed an application under Order 22 Rule 4 Civil Procedure Code on 16.04.2009 with the averment that the name of the legal representatives of the deceased defendant have come into the knowledge of the petitioner recently when mutation order was passed by the Tehsildar and in place of the deceased names of his legal representatives have been ordered to be entered in revenue record. It was prayed by the petitioner that in place of the deceased defendant name of his legal representatives may be substituted. Alongwith the application, an application under Section 5 of the Limitation Act was also filed but no separate and independent application under Rule 9 Order 22 of Civil Procedure Code was filed and no prayer was also made in the application filed under Order 22 Rule 4 Civil Procedure Code to the effect that abatement automatically caused to the extent of deceased defendant Ram Nath may be set aside. Reply to the application was not filed by the non-petitioners. Reply to the application was not filed by the non-petitioners. The learned trial Court vide impugned order dismissed the application filed by the petitioner and as a consequence thereof, it was also ordered that suit to the extent of deceased defendant stands abated. It was also order that the suit will continue against the remaining defendants. Feeling aggrieved, the plaintiff-petitioner is before this Court by way of this revision petition. 4. On consideration of the submissions made on behalf of respective parties and also going through the material available on record and the relevant legal provisions, I do not find any illegality and perversity in the impugned order. It is well settled the at the expiry of prescribed period of 90 days, automatic abatement of the suit results against the deceased party and no specific order of the Court is required in this respect and only remedy available is that application under Rule 9 Order 22 Civil Procedure Code is filed within the prescribed period of sixty days with the prayer that the abatement may be set aside and for that sufficient cause is also required to be shown. In the present case, it is an admitted fact that defendant Ram Nath died on 13.08.2007 and, therefore, at the expiry of period of 90 days, the suit to his extent stood automatically abated. Thereafter, it was the duty of the plaintiff-petitioner to move an application under Order 22 Rule 9 Civil Procedure Code with the prayer that the abatement may be set aside and in support of the application sufficient cause was also required to be shown. Although, in the present case, no such separate application was filed but in the application filed under Order 22 Rule 4 Civil Procedure Code, it was mentioned that the name of the legal representatives came to the knowledge of petitioner when the Tehsildar made a order for mutation in favour of legal representative of the deceased defendant but no evidence in support thereof was produced by the petitioner. In the impugned order, it has been mentioned by the Court below that the application filed under Section 5 of the Limitation Act bears the date 06.08.2008 which is indication of the fact that long before the application under Order 22 Rule 4 Civil Procedure Code was filed on 16.04.2009, the petitioner was in the knowledge of the fact that who are the legal representatives of the deceased defendant but in spite of that the application was not moved immediately but it was filed with undue delay on 16.04.2009 and these facts are clear indication of the fact that from the very beginning or immediately after death of Shri Ram Nath the petitioner was in the knowledge of the legal representatives of the deceased but even then no steps were taken by him to bring them on record within the prescribed period and no plausible explanation has been furnished for the delay caused. In these circumstances, if the Court below has dismissed the application filed by the petitioner. I do not find any illegality or perversity in the same. 5. Consequently the revision petition being meritless is hereby, dismissed at the admission stage itself. The stay application is also dismissed. Appeal dismissed.