JUDGMENT 1. - This writ petition has been filed by the petitioner-defendant aggrieved against order dated 25.11.2014, whereby, application filed by him purportedly under Order 22, Rule 4 read with Section 151 CPC seeking dismissal of the suit has been rejected by the trial court. 2. The respondent-Chunnilal filed a suit seeking cancellation of sale deed dated 22.08.1996 executed by Smt. Oti in favour of petitioner-Dharma Shanker, inter alia, with the averments that the suit property situated at Bhatto Ka Bass, Jalore belonged to one Smt. Gulabi Bai; the plaintiff was adopted son of said Smt. Gulabi Bai and after death of said Smt. Gulabi Bai, the property owned by her vests in him; the suit property was transferred by Smt. Oti, who is related to said Smt. Gulabi Bai claiming a oral Will in her favour and, based on said oral Will, she transferred the suit property to Dharma Shanker; the suit, which was filed on 17.02.1998, remained pending, wherein, Smt. Oti filed her written statement seeking dismissal of the suit filed by Chunnilal; petitioner - Dharma Shanker also filed his written statement seeking dismissal of the suit. 3. On 08.11.2005 it was brought to the notice of the Court that defendant No. 1 - Smt. Oti had expired. 4. An application was filed by the plaintiff - Chunnilal, inter alia, indicating that on information given by the defendant, it has come to the notice of the plaintiff that Smt. Oti has expired; the plaintiff is not aware of any legal representatives of Smt. Oti; if the defendants have any information, the same may be got produced and, ultimately, it was prayed that as there are no legal representatives, name of Smt. Oti be deleted from the array of parties. 5. By order dated 18.07.2006, it was noticed by the trial court that as per the plaintiff, defendant No. 1 - Smt. Oti had no legal representative; the defendants have also pleaded want of information regarding any legal representative and, therefore, her name was deleted from the array of parties. 6. 5. By order dated 18.07.2006, it was noticed by the trial court that as per the plaintiff, defendant No. 1 - Smt. Oti had no legal representative; the defendants have also pleaded want of information regarding any legal representative and, therefore, her name was deleted from the array of parties. 6. Whereafter, an application was filed by petitioner defendant, inter alia, submitting that the main basis of the suit pertains to rights of Smt. Oti, the reply whereof, can only be given by her legal representatives; her legal representatives have not been impleaded as party and her name has been deleted from the array of parties; Smt. Oti is a necessary party and, in absence of her legal representatives, the suit was not maintainable and hearing on the maintainability of the suit was necessary and it was prayed that as the legal representatives have not been brought on record the suit being not maintainable be dismissed. 7. The application was replied to by the plaintiff and it was indicated that the name of defendant - Smt. Oti was deleted by the order of the Court, against which, neither any appeal nor revision seeking setting aside of the order was filed and, as such, the application was not maintainable and the same deserves to be dismissed. Reliance was placed on the Full Bench judgment of this Court in the case of Hardeva v. Ismail, AIR 1970 Raj. 167 . 8. The trial court after hearing the parties by its order dated 21.07.2009 came to the conclusion that the order dated 18.07.2006, whereby, name of Smt. Oti was deleted from the array of parties, has not been questioned by way of filing an appeal or revision; no information has been placed before the Court regarding existence of legal representatives of Smt. Oti and that the plaintiff has deliberately not brought such legal representatives on record and, therefore, by order dated 18.07.2006 by which the name has been deleted from the array of parties has become final and application being not maintainable was dismissed. 9. Feeling aggrieved, the petitioner filed S.B. Civil Writ Petition No. 9047/2009. 10. 9. Feeling aggrieved, the petitioner filed S.B. Civil Writ Petition No. 9047/2009. 10. This Court by order dated 17.04.2013 on the submission made by counsel for the petitioner - Dharma Shanker that the petitioner has found out that there are some legal representatives of deceased Smt. Oti, who deserve to be brought on record in the suit, directed that the petitioner is at liberty to file appropriate application before the trial court and the trial court will decide the same in accordance with law; the Court further observed that no interference is called for in the order date 21.07.2009. 11. Whereafter, the petitioner filed an application purportedly under Order 22, Rule 4 read with Section 151 CPC, inter alia, giving out the sequence of events till passing of the order dated 17.04.2013 passed by the High Court; whereafter, it was alleged that the plaintiff and deceased Smt. Oti were members of the same family and it cannot be believed that the plaintiff was not aware of her death and her legal representatives; however, the petitioner has found out the legal representatives of Smt. Oti and indicated their names in para 4 of the application; it was alleged that the plaintiff has deliberately with mala fide intentions despite knowledge of legal representatives of Smt. Oti has not impleaded them as party and, therefore, the suit stands abated; it was claimed that High Court by order dated 17.04.2013 has required filing of the application and, therefore, the application was being filed; it was prayed that the application be accepted and as legal representatives of Smt. Oti were deliberately not brought on record, the suit be dismissed as abated. 12. A reply to the application was filed by the plaintiff; it was indicated that the application seeking dismissal of the suit already stands rejected by the Court by its order dated 21.07.2009, which order has been upheld by the High Court and, therefore, the second application for the said purpose cannot be maintained; it was further indicated that the suit property has been transferred by Smt. Oti to Dharma Shanker; whereafter, she is only a formal party and is not a necessary party and, therefore, it cannot be said that the suit was not maintainable and prayed for dismissal of the application. 13. 13. The trial court by its order dated 25.11.2014 came to the conclusion that application for bringing on recored the legal representatives could only be filed by the plaintiff; the legal representatives of the deceased have not filed any application, which at the instance of the defendant-petitioner was not maintainable and from the application it appears that there was collusion between the defendant No. 1/her legal representatives and the defendant-petitioner, on account of which, the legal representatives were not filing the application and, consequently, dismissed the application. 14. It is submitted by learned counsel for the petitioner that admittedly Smt. Oti was survived by certain legal representatives, reference to which, was made in the application filed by the petitioner and as at the relevant time the plaintiff did not bring the legal representatives on record, the suit stood abated qua Smt. Oti and as Smt. Oti was a necessary party, the suit in absence of her/her legal representatives cannot survive and, therefore, the trial court should have accepted the application and dismiss the suit as having abated; it was submitted that the order dated 17.04.2014 passed by this Court in the earlier round of litigation, gave liberty to the petitioner to file appropriate application and, therefore, the present application was filed and it cannot be said that the application was not maintainable on account of the earlier order dated 21.07.2009 passed by the trial court and, therefore, the order passed by the trial court deserves to be set aside and the application filed by the petitioner deserves to be allowed and, consequently, the suit be ordered to be dismissed as abated. 15. 15. Learned counsel for the respondent submitted that the order dated 21.07.2009 was passed by the trial court holding that in absence of Smt. Oti, it cannot be said that the suit cannot proceed, the said order was challenged before this Court, wherein, a submission about existence of legal representatives of Smt. Oti was made and the Court granted liberty to the petitioner to file application in this regard, however, instead of seeking impleadment of the legal representatives of Smt. Oti, the petitioner has chosen to seek dismissal of the suit, which aspect had already been decided by the trial court by its order dated 21.07.2009 and upheld by this Court while deciding the writ petition on 17.04.2013 and, therefore, the present application was not maintainable and the trial court was justified in dismissing the application. 16. Reliance was again placed on the judgment of this Court in the case of Hardeva (supra). 17. I have considered the rival submissions made by learned counsel for the parties and have perused the material placed on record. 18. 16. Reliance was again placed on the judgment of this Court in the case of Hardeva (supra). 17. I have considered the rival submissions made by learned counsel for the parties and have perused the material placed on record. 18. It is not in dispute that the suit was filed by plaintiff - Chunnilal, inter alia, against Smt. Oti and petitioner - Dharma Shanker seeking cancellation of sale deed dated 22.08.1996 executed by Smt. Oti in favour of Dharma Shanker; the suit remained pending and during pendency of the suit Smt. Oti died; the plaintiff indicated his unawareness of any legal representatives and filed application calling upon the defendants to disclose the legal representatives and in the alternative for deletion of her name; the defendants indicated their lack of information regarding existence of any legal representatives and, therefore, the trial court by its order dated 18.07.2006 ordered for deletion of name of Smt. Oti; whereafter, it dawned on the defendant that in absence of Smt. Oti, the suit cannot proceed and, therefore, the application dated 09.10.2007 was filed seeking dismissal of the suit for not brining on record the legal representatives of Smt. Oti; it would be significant to note that when the application dated 09.10.2007 was filed, even at that point of time, the petitioner was not aware of existence of any legal representative; the application was contested and the trial court came to the conclusion that Smt. Oti was not a necessary party to the suit, rejected the application; the petitioner questioned the rejection of the application and during pendency of the writ petition the following observations were made and directions were issued by a Coordinate Bench of this Court on 17.04.2013. "2. The learned counsel for the petitioner, Mr. Amit Mehta submitted that later on defendant No.2 Dharma Shankar has found out that there are some LRs. of deceased Oti, who deserves to be brought on record in the present suit. 3. If it is so, the defendant - petitioner is at liberty to file appropriate application before the learned trial Court and the learned trial Court will decide the same in accordance with law. No interference is called for in the impugned order dated 21.7.2009 in the present writ petition under Article 227 of the Constitution of India. 4. Accordingly, the present writ petition is dismissed. No interference is called for in the impugned order dated 21.7.2009 in the present writ petition under Article 227 of the Constitution of India. 4. Accordingly, the present writ petition is dismissed. The interim order dated 9.10.2009 granted by this Court is vacated. The record if received here of the trial court be sent back immediately. No order as to costs. A copy of this order be sent to the parties concerned and the learned trial court below forthwith." 19. From a perusal of the order it appears that submission was made on behalf of the petitioner that as the legal representatives of Smt. Oti have been found, they deserve to be brought on record in the suit and this Court granted liberty to file appropriate application. 20. Instead of seeking impleadment of the legal representatives of Smt. Oti, pursuant to the directions of this Court, the petitioner while pointing out the existence of the legal representatives sought dismissal of the suit as abated on account of non-impleadment of legal representatives; the tenor of the application filed by the petitioner again essentially was that as Smt. Oti was a necessary party to the suit and despite presence of her legal representatives, they have not been brought on record, the suit deserves to be dismissed; the said prayer essentially was reiteration of the earlier prayer made in the application dated 09.10.2007 with a slight variation i.e. while in the earlier application the legal representatives were not known and in the later application the legal representatives were known, however, the said aspect is not of much of consequence so far as the issue as to whether Smt. Oti was a necessary party to the suit was concerned, once the order dated 21.07.2009 was passed by the trial court holding the said aspect otherwise and the said order was specifically upheld by this Hon'ble Court by order dated 17.04.2013 (supra) by observing that no interference was called for in the order dated 21.07.2009, the petitioner essentially cannot be permitted to re-agitate the same issue all over again. 21. The issue as to whether vendor in a suit for cancellation of sale deed is a necessary party is well settled by the Full Bench judgment of this Court in the case of Hardeva (supra) and the said aspect is not open to be re-agitated all over again. 22. 21. The issue as to whether vendor in a suit for cancellation of sale deed is a necessary party is well settled by the Full Bench judgment of this Court in the case of Hardeva (supra) and the said aspect is not open to be re-agitated all over again. 22. A plea was raised by learned counsel for the petitioner that as in the present case the petitioner has questioned the validity of adoption of Chunnilal by Smt. Gulabi, the presence of Smt. Oti/her legal representative would be necessary; on the said submissions a specific question was put to the learned counsel for the petitioner as to whether the petitioner was interested in taking on record the legal representatives of Smt. Oti, the counsel for the petitioner specifically denied the said proposition and submitted that the application filed by the petitioner has to be allowed and the suit deserves to be dismissed and the petitioner is not interested in taking on record of the legal representatives of Smt. Oti. 23. Once the plea regarding necessity of presence of Smt. Oti stands decided by the trial court and which has been upheld by this Court, the plea as observed hereinbefore cannot be reagitated all over again; the questioning of the adoption of Chunnilal is essentially related to the validity of execution of sale deed by Smt. Oti and as held by the Full Bench the presence of the vendor is not necessary.In view of the above discussion, there is no substance in the writ petition and the same is, therefore, dismissed. No order as to costs.Petition dismissed. *******