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2014 DIGILAW 1105 (RAJ)

Harish v. Shrinath Lohiya

2014-05-08

SANDEEP MEHTA

body2014
JUDGMENT 1. - The matter today comes up on an application being A.O. 2454/2014 filed by learned Counsel Shri Manish Patel on behalf of the applicants viz. Smt. Aneeta Damwani, Bhagyashri and Dinesh, the legal heirs of ate Narendra under Article 226 of the Constitution of India read with Order 22 Rules 3 and 9 C.P.C. for being impleaded and seeking permission to prosecute the Tit petition on behalf of Shri Narendra, who expired earlier. 2. Facts in brief are that the present writ petition was filed by Sh. Harish and Narendra (defendants) through their power of attorney Sh. Basudev challenging the order passed by the Appellate Court rejecting the appeal filed by the petitioners against the temporary injunction order passed by the Civil Court in favour of the plaintiff. The suit in question was filed by the plaintiff Shrinath Lohiya, (respondent No. 1 in writ petition), against Harish and Narendra the defendants (petitioners in writ petition). The writ petition came to be allowed by this Court on 2.4.2009. 3. Thereafter, a Misc. Application No. 62/2012 was moved by the plaintiff Shrinath Lohiya for recalling of the order on the ground that the petitioner Narendra had expired during the pendency of the writ petition and the learned Counsel for the petitioner did not bring this fact to this Court's notice when the writ petition was being argued. When the application for recalling of the order was being considered, this Court was also informed the petitioner No. 1 Harish had also passed away. 4. This Court, accordingly, after service of the notices upon the legal heirs of both the petitioners, vide order dated 19.12.2013 passed in Misc. Application No. 62/20 1 2, recalled the order dated 2.4.2009 and restored the writ petition. Now, the application as aforestated has been moved in the writ petition for permitting the legal heirs of the deceased Narendra to be taken on record and for saving the proceedings of the writ from being terminated by abatement. 5. Shri Manish Patel learned Counsel for the applicants submits that in order to secure the ends of justice, the application for taking the legal representatives of late Shri Narendra on record and for setting aside the abatement of the proceedings should be accepted. 6. 5. Shri Manish Patel learned Counsel for the applicants submits that in order to secure the ends of justice, the application for taking the legal representatives of late Shri Narendra on record and for setting aside the abatement of the proceedings should be accepted. 6. Shri Shrinath Lohiya, the respondent No. 1 in the writ petition, vehemently opposed the submissions advanced be learned Counsel Shri Manish Patel and submits that the whole proceedings were deliberately kept alive by giving fraudulent information to this Court and thus, the application should be rejected He further submits that the application for taking on record the LR's of Narendra on record in highly belated and is not supported by an application for condonation of delay. Thus, he urged that the same be rejected. 7. I have heard the arguments advanced by the Counsel appearing for the applicants and the respondent in person and have gone through the application filed by Shri Patel learned Counsel for the applicants. 8. Significant it is to note that the application, which has been moved on behalf of the applicants under Article 226 of the Constitution of India read with Order 22 Rules 3 and 9 C.P.C. does not mention about the date on which the writ petitioner. Shri Narendra passed away. As per Article 120 of the Limitation Act, an application under Order 22 C.P.C. for bringing the legal representatives of deceased plaintiff or a deceased dependant has to be filed within a period of 9H days from the date of his/her death. A further period of 60 days is provided under Article 121 of the Limitation Act for setting aside the abatement of the proceedings. Undisputedly, the applicants were aware of the proceedings of the writ petition when the notices of the Misc. Application No. 62/2012 were served on them. The order dated 19.12.2013 passed in the Misc. Application No. 62/2012 clearly refers to the fact that service of the notice of the application for recalling of the order passed in the Writ petition was effected on the legal heirs of Harish as well as Narendra. Thus,,more than a year has passed since the applicants became aware of the pendency of this writ petition before this Court. Furthermore, the petitioners Harish and Narendra apparently passed away a long time even before the writ petition was decided. Thus,,more than a year has passed since the applicants became aware of the pendency of this writ petition before this Court. Furthermore, the petitioners Harish and Narendra apparently passed away a long time even before the writ petition was decided. Thus the application filed on behalf of the applicants for being permitted to prosecute the writ petition and for setting aside the abatement of the proceedings is hopelessly barred by limitation. The application is not supported by any prayer under Section 5 of the Limitation Act. Thus, there is no justification to accept the prayer made for taking the LR's of Sh Narendra on record.Accordingly, the I.A. No. 2459/2014 is rejected.The I.A. No. 2459/2014 filed by the respondent Shrinath Lohiya has become infructuous in view of the dismissal of the I.A. No. 2459/2014 and the same is rejected as such.Consequently, the writ petition is also dismissed as having abated.Petition and application dismissed. *******