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2014 DIGILAW 251 (RAJ)

Alimuddin v. Shri Shyam Sunder Tapadia

2014-01-22

BELA M.TRIVEDI

body2014
JUDGMENT 1. - The present writ petition has been filed by the petitioner under Articles 226 & 227 of the Constitution of India, challenging the order dated 29.05.2013 passed by the Additional District & Sessions Judge No.1, Ajmer (hereinafter referred to as "the trial court") in Civil Suit No.68/2008, whereby the trial court has dismissed the application of the petitioner-plaintiff for bringing on record the legal heirs of the respondent No.2 under Order 22, Rule 4 of CPC. 2. In the instant case, it appears that the petitioner-plaintiff has filed the suit seeking cancellation of the sale deed allegedly executed by the deceased respondent No.2 Shri Gopal Tolani in favour of the respondent No.3, on the ground that the said respondent No.2 had sold out the suit property on the basis of power of attorney allegedly executed by the petitioner-plaintiff in his favour. According to the plaintiff, the respondent No.1 was the property dealer, with whom an agreement was entered into by the plaintiff, and the respondent No.1 misusing the signature of the petitioner, obtained on the blank papers, had forged the power of attorney in favour of the respondent No.2 as if it was executed by the petitioner, and that the said respondent No.2 in turn executed the sale deed in favour of the respondent No.3, which has been sought to be cancelled in the suit. During the pendency of the said suit, the said respondent No.2 expired, and therefore, the petitioner submitted an application for bringing on record his legal heirs under Order 22, Rule 4 along-with the application seeking condonation of delay, and for setting aside the abatement qua the respondent No.2, if any. The said application has been dismissed by the trial court vide the impugned order. 3. It has been sought to be submitted by the learned counsel Mr. Praveen Sharma for the petitioner that the respondent No.2-defendant No.2 Gopal Tolani was impleaded as the party defendant in his personal capacity, and on his death, his legal heirs were required to be brought on record. However, the learned counsel for the respondents have jointly submitted that the respondent No.2-defendant No.2 having been impleaded as party defendant in the capacity of being power of attorney holder, the said power of attorney had come to an end after his death, and hence the legal heirs could not be substituted in his place. 4. However, the learned counsel for the respondents have jointly submitted that the respondent No.2-defendant No.2 having been impleaded as party defendant in the capacity of being power of attorney holder, the said power of attorney had come to an end after his death, and hence the legal heirs could not be substituted in his place. 4. Having regard to the submissions made by the learned counsels for the parties, and to the impugned order passed by the trial court, it appears that the trial court has dismissed the application of the petitioner on the fallacious ground that on the death of power of attorney holder Shri Gopal Tolani, no cause of action had survived qua his heirs. Since the petitioner-plaintiff has filed the suit seeking cancellation of the sale deed executed by the deceased respondent No.2 Gopal Tolani in favour of the respondent No.3, alleging that the respondent Nos.1 & 2 had committed fraud with him by forging the power of attorney in the name of the plaintiff had sold out the property of the plaintiff to the respondent No.3, it could not be said that the cause of action did not survive against the legal heirs of the respondent No.2 on his death. The respondent No.2-defendant No.2 was impleaded in the suit in his personal capacity and not as the power of attorney holder of the petitioner-plaintiff, and therefore the right to sue against the legal heirs of the respondent No.2 would survive in the suit. 5. In that view of the matter, the impugned order dated 29.05.2013 passed by the trial court being illegal and perverse, the same deserves to be set-aside, and is accordingly set-aside. The legal heirs of the deceased respondent No.2-the defendant No.2 are permitted to be brought on record of the suit. 6. The petition is allowed accordingly.Petition Allowed. *******