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2015 DIGILAW 970 (RAJ)

Ashok Kumar v. Banshidhar @ Banshilal

2015-05-01

ARUN BHANSALI

body2015
JUDGMENT : 1. This review petition has been filed on behalf of the legal representatives of respondent No.6 as impleaded in the writ petition seeking review of order dated 29.01.2015 passed by this Court. Alongwith the review petition, an application seeking permission to file review petition has been filed. 2. In the facts and circumstances of the case, the application seeking permission to file review petition is allowed. 3. The principal grievance raised in the review petition is that the respondent No.6 named in the writ petition Smt. Badami Devi had expired on 20.08.2007; her legal representatives were taken on record on 10.04.2008 before the trial court and the amended cause title was taken on record on 02.05.2008. 4. It is submitted that in the writ petition filed before this Court, the legal representatives of defendant No.6 were not impleaded as party and, therefore, they could not put forward their case at the time of disposal of the present writ petition, which was filed on 18.04.2014. Besides the said objection, the order passed by this Court on 29.01.2015 has also been sought to be questioned on account of alleged error apparent on the face of record. 5. It is noticed from the record of S.B. Civil Writ Petition No.3058/2014 that on 24.04.2014, a Coordinate Bench of this Court ordered issuance of notice and further proceedings before the trial court in the suit were stayed. The notices of all the respondents were sent including for respondent No.6, who is reported dead. The notices of the writ petition were received by the respondent No.5 himself i.e. Pukhraj Chopra and notices of respondent No.6 were also received by Pukhraj Chopra, husband of respondent No.6 Smt. Badami Devi, while his notice was received by him indicating only a receipt the notices of Smt. Badami Devi were received by him by indicating that the same were received for Smt. Badami Devi. Whereafter, respondent No.5 put in appearance through counsel. 6. It would also be noticed that a joint written statement by respondent No.5 and 6 - husband & wife was filed in the suit. 7. Whereafter, the writ petition filed by the petitioner was heard by this Court on 29.01.2014. Whereafter, respondent No.5 put in appearance through counsel. 6. It would also be noticed that a joint written statement by respondent No.5 and 6 - husband & wife was filed in the suit. 7. Whereafter, the writ petition filed by the petitioner was heard by this Court on 29.01.2014. Neither any time prior to the date of order dated 29.01.2015 nor on 29.01.2015, it was pointed out on behalf of respondent No.5 (husband of respondent No.6) that the respondent No.6 had died and was survived by legal representatives, who were already on record of the trial court and were not impleaded as party. 8. Further, the dispute in the writ pertained to an application filed by the respondent No.5 alone under Order 16, Rule 15 and Order 11, Rule 12 14 CPC seeking discovery and production of certain records, which application was allowed by the trial court on 21.03.2014. 9. After hearing the parties, by order dated 29.01.2015, the writ petition was allowed and the order dated 21.03.2014 passed by the trial court was set aside. 10. It is submitted by learned counsel for the petitioners that as the order dated 29.01.2015 has been passed against a dead person, order needs to be recalled; the Court while deciding the writ petition, in the last paragraph has observed that the application filed by the defendants No.5 and 6 is dismissed, though the application was filed by the respondent No.5 only, which observation is contrary to facts and further submissions have been made on the merits of the order dated 29.01.2015 passed by this Court. 11. Reliance has been placed on judgment of Hon'ble Supreme Court in the case of Kishun @ Ram Kishun (Dead) through Lrs. v. Bihar (Dead) by Lrs. 12. I have considered the submissions made by learned counsel for the petitioner. 13. 11. Reliance has been placed on judgment of Hon'ble Supreme Court in the case of Kishun @ Ram Kishun (Dead) through Lrs. v. Bihar (Dead) by Lrs. 12. I have considered the submissions made by learned counsel for the petitioner. 13. At the outset, it may be noticed that the foundation of the challenge that the order dated 29.01.2015 has been passed against the respondent No.6, who is dead is without any basis, inasmuch as, as already noticed hereinbefore the application was filed by respondent No.5 alone though a joint written statement was filed by both the respondents No.5 and 6, admittedly respondent No.5 was represented by a counsel and was heard and, therefore, in those circumstances, it cannot be said that the order dated 29.01.2015 was passed against respondent No.6 as she was not an applicant in the application. 14. So far as the judgment of Hon'ble in the case of Kishun @ Ram Kishun (supra) is concerned, the observation pertains to passing of a decree against a dead person. In view of the observation made above regarding the order dated 29.01.2015 having not been passed against the respondent No.6, it cannot be said that the judgment has any application. 15. So far as the observation made by this Court in the last paragraph regarding dismissal of application filed by defendant No.6 is concerned, the same apparently is superfluous and does not effect the outcome of the application and the merits of the order dated 29.01.2015. 16. The submissions made by the petitioners regarding the order dated 29.01.2015 pertains to the merits of the order and the same needs to be questioned before appropriate forum. No error apparent on the face of record has been pointed out by the learned counsel for the petitioner. 17. In view of the above, no case for review of the order dated 29.01.2015 is made out. The review petition is, therefore, dismissed.Petition dismissed.