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2014 DIGILAW 767 (ALL)

Gaya Prasad v. Jamuna Devi

2014-03-04

PANKAJ MITHAL

body2014
JUDGMENT Pankaj Mithal, J. Heard Sri K.K. Nirkhi, learned counsel for the petitioners. 2. Petitioners have filed Original Suit No. 2053 of 1997 for a decree of permanent injunction against one Babu Lal and Rajjan Lal. The suit was dismissed vide judgment and order dated 3.9.2003. Petitioners therefore preferred Civil Appeal No. 166 of 2003. During pendency of the appeal one of the defendants Babu Lal died on 23.5.2004. Different parties claimed for substitution as his heirs and legal representatives. The appellate court by the impugned order dated 9/10.11.2013 has remitted the matter regarding decision about the heirs and legal representatives of the deceased Babu Lal in accordance with Order 21 Rule 5 CPC to the court of first instance after taking the evidence keeping the appeal pending before it. 3. In challenging the above order of the appellate court remitting the matter regarding decision of the heirs and legal representatives of the deceased Babu Lal, the submission of learned counsel for the petitioners is that with the death of Babu Lal cause of action of the suit has seized to exits. The petitioners are no longer interested in pursuing the matter and therefore it is totally futile to remit the above aspect of the matter to the court of first instance. 4. In view of the statement made by the learned counsel for the petitioners that the cause of action in the suit itself has ceased to exist and that there is no purpose in pursuing the suit after the death of Babu Lal against whom injunction was actually sought, there appears to be no instruction in remitting the issue to the court of first instance for decision and in keeping alive the appeal which has been preferred by the petitioners. 5. Learned counsel for the petitioners accept that he has no objection if the appeal is dismissed outright without going into the issue which has been remitted by the appellate court. 6. Accordingly, the writ petition is disposed of with direction to the appellate court to dismiss Civil Appeal No. 166 of 2003 (Gaya Prasad and another Vs. Babu Lal and others) and the court of first instance not to enter into any exercise to decide application no. 31 Ga and objections, application no. 35 Ga as remitted to it by the appellate court. 7. Babu Lal and others) and the court of first instance not to enter into any exercise to decide application no. 31 Ga and objections, application no. 35 Ga as remitted to it by the appellate court. 7. A copy of this order may immediately be forwarded to the appellate court as well as the court of first instance.