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2016 DIGILAW 105 (RAJ)

Jasraj v. Bhawani Singh

2016-01-15

ARUN BHANSALI

body2016
ORDER : Arun Bhansali, J. This writ petition has been filed by the petitioner aggrieved against the order dated 07.08.2007 passed by the trial court, whereby the application filed by the petitioner under Order 22, Rule 10 CPC read with Order 22, Rule 3 and 9 CPC has been rejected. 2. The suit was filed by the plaintiffs - Ghanshyam, Surendra, Om Prakash and Srikishan seeking specific performance of contract against the defendants Bhawani Singh and Pukhraj. During pendency of the suit, plaintiff No.4 Srikishan died. The legal representatives of Srikishan were not brought on record, however, the petitioner-applicant filed application under Order 22, Rule 10 read with Order 22, Rule 3 and 9 CPC along with an application under Section 5 of the Limitation Act seeking impleadment as legal representative of plaintiff No.4 Srikishan. 3. The application was opposed by defendant No.1 and after hearing the parties, the trial court by the impugned order came to the conclusion that as the application was not filed within 90 days and had been filed after almost one year form the date of death of Srikishan, though the application under Section 5 of the Limitation Act has been filed, sufficient cause has not been indicated and, consequently dismissed the application and directed abatement of the suit qua the plaintiff No.4 Srikishan. 4. Show cause notice of the present writ petition was issued to the respondents on 01.07.2008. Despite service, no one appeared for the respondents and, therefore, on 01.08.2008, the writ petition was admitted and fresh notices were issued and further proceedings in the suit were stayed. Where after only respondent No.2 has put in appearance and no one else has put in appearance. 5. It is submitted by learned counsel for the petitioner that the trial court was not justified in dismissing the application filed by the petitioner and directing abatement of the suit qua the plaintiff No.4 Srikishan, inasmuch as, detailed application pointing out the cause for delay was filed before the trial court, however, without dealing with the said aspect in a cursory and slipshod manner, the application has been rejected and, therefore, the order impugned deserves to be quashed and set aside. 6. Learned counsel for the respondent No.2 has no objection in case the writ petition is accepted. 7. 6. Learned counsel for the respondent No.2 has no objection in case the writ petition is accepted. 7. I have considered the submissions made by learned counsel for the petitioner and have perused the material available on record. 8. A bare perusal of the application under Section 5 of the Limitation Act filed by the petitioner reveals that the petitioner had indicated therein that after the death of plaintiff No.4 Srikishan, the petitioner had requested the other plaintiffs to implead him as legal representative of the deceased Srikishan on account of the Will having been executed by the deceased Srikishan in favour of the petitioner, however, neither the natural heirs were impleaded nor the petitioner was impleaded as party. In fact, the petitioner had made a prayer in the application that either the natural heirs be impleaded or the petitioner be impleaded as legal representative. The reasons indicated in the application, cannot be said to be wholly unsustainable so as to entail rejection of the application filed by the petitioner for condoning the delay and, consequential dismissal of the application filed under Order 22, Rule 10 read with Order 22, Rule 3 and 9 CPC. 9. In view of the above, the writ petition filed by the petitioner is allowed. The order passed by the trial court dated 07.08.2007 to the extent of dismissal of the application filed by the petitioner cannot be sustained, the same is, therefore, set aside. The application seeking condonation of delay in filing the application under Order 22, Rule 10 read with Order 22, Rule 3 and 9 CPC filed by the petitioner is allowed, the delay is condoned; the abatement is set aside and the application filed by the petitioner for impleadment as legal representative of the deceased plaintiff No.4 Srikishan is allowed. 10. The petitioner would file the amended cause title before the trial court and looking to the fact that the suit was filed way back in the year 2002, the trial court will proceed with the matter as expeditiously as possible.