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2016 DIGILAW 77 (RAJ)

LR of Laxman Singh v. Suraj Kanwar

2016-01-12

ARUN BHANSALI

body2016
JUDGMENT : Arun Bhansali, J. These writ petitions have been filed by the petitioner aggrieved against the orders passed by the trial court, whereby the application filed by the respondent-plaintiffs under Order 22, Rule 4 CPC have been allowed. 2. The suits were filed by the respondents, inter alia, against Laxman Singh and during pendency of the suit, Laxman Singh died and an application under Order 22, Rule 4 CPC was filed for imp leading Pan Kanwar, Bindu Kanwar and Himmat Singh as his legal representatives. 3. A reply to the application was filed by the petitioner, inter alia, pointing out that one more daughter Smt. Phool Kanwar, who pre-deceased Laxman Singh, is survived by her daughter and son-in-law and they were necessary parties to the suit and as the plaintiffs have not imp leaded them as party, the suit was liable to be dismissed as having abated. 4. The trial court after hearing the parties, came to the conclusion that as the most of the legal representatives of the deceased Laxman Singh have already been prayed to be taken on record, exercising powers under Order I, Rule 10(2) CPC, it ordered for taking on record the daughter and son-in-law of Smt. Phool Kanwar, pre-deceased daughter of Laxman Singh along with the other legal representatives. Another objection was raised by the petitioner regarding non-filing of amended plaint consequent to passing of the order under Order 22, Rule 4 CPC was also declined and the respondents were granted time to file the amended plaint. 5. It is submitted by learned counsel for the petitioner that the trial court was not justified in imp leading the legal representatives of deceased Laxman Singh, who were left out in the application filed by the plaintiffs and the suit in absence whereof had abated and, therefore, the order impugned cannot be sustained. 6. The order passing by the trial court has been supported by the learned counsel for the respondents. 7. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 8. It is not in dispute that Laxman Singh died during the pendency of the suit and application was filed for bringing on record the legal representatives, the plaintiffs indicated names of three legal representatives including daughters Pan Kanwar and Bindu Kanwar. 8. It is not in dispute that Laxman Singh died during the pendency of the suit and application was filed for bringing on record the legal representatives, the plaintiffs indicated names of three legal representatives including daughters Pan Kanwar and Bindu Kanwar. However, the name of pre-deceased daughter Phool Kanwar and her daughter Maya Kanwar was not indicated, which objection was raised by the petitioner by way of filing application. 9. The trial court while passing the order on application under Order 12, Rule 4 CPC, came to the conclusion that the estate of deceased Laxman Singh was duly represented by his son and two daughters and the missing legal representative i.e. Maya Kanwar, daughter of pre-deceased daughter Phool Kanwar, was directed to be imp leaded under Order I, Rule 10(2) CPC and came to the conclusion that the suit cannot be dismissed for non-impleadment of one of the legal representatives, when most of the representatives were already on record. 10. The court also came to the conclusion that though the petitioner was required to file plaint pursuant to the impleadment of the legal representative, the non-filing also cannot result in dismissal of the suit. 11. The order passed by the trial court cannot be faulted. Admittedly, most of the legal representatives of the deceased Laxman Singh were prayed to be taken on record and the application filed by the petitioner was also faulty, inasmuch as, a son-in-law of pre-deceased daughter cannot be said to be legal representative of the deceased Laxman Singh. However, the trial court only with a view to cut-short the controversy exercised powers under Order I, Rule 10(2) CPC, which action cannot be said to be faulty on part of the trial court. 12. In that view of the matter, there is no substance in so far accepting the application under Order 22, Rule 4 CPC is concerned. 13. So far as non-compliance of provisions of Rule 34 of General Rules Civil is concerned, the trial court has rightly granted time to the plaintiffs to file the amended plaint as while passing the order, the Court had not passed a direction to file the plaint based on amendment. 14. It may also be noticed that the petitioner has also filed a review petition against the order passed by the trial court. 14. It may also be noticed that the petitioner has also filed a review petition against the order passed by the trial court. The filing of the review petition in the circumstances of the case, clearly appears to be an abuse of the process of the Court and was rightly rejected. In view of the above discussion, there is no substance in the writ petitions, the same are, therefore, dismissed.