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2016 DIGILAW 780 (UTT)

Sudhir Kumar Jain v. Raj Kumar Suri

2016-10-28

RAJIV SHARMA

body2016
JUDGMENT : Rajiv Sharma , J. The present petition is instituted against the order 1st dated 28.08.2015, rendered by the Additional District Judge, Dehradun in Civil Revision No. 59 of 2015. 2. “Key facts”, necessary for adjudication of the present petition are that the petitioner (hereinafter referred to as the “plaintiff”) instituted a suit being Original Suit No.95 of 2002 in the court of Civil Judge (Sr. Div.), Dehradun for declaring the judgment and decree dated 12.05.1999 and 24.05.1999 passed in Original Suit No. 293 of 1999 as not binding on plaintiff and for perpetual prohibitory injunction. The defendant no. 2, who died on 30.11.2014, had appeared and filed an application for rejection of the plaint. Since defendant nos. 1, 3 and 4 were avoiding the service, the trial court vide order dated 11.02.2009 directed to serve defendant nos. 1, 3 and 4 by way of publication. On 04.11.2009, plaintiff and defendant no. 2 were present, but defendant nos. 1, 3 and 4 were not present though served. Thus, the matter proceeded ex-parte. 3. Thereafter, the case was transferred to the court of the learned 1st Additional Civil Judge (Sr. Div.), Dehradun. The defendant no. 2 did not appear repeatedly before the trial court and the case proceeded ex-parte against him also. Thereafter, various applications were moved for recalling the orders whereby the case was proceeded ex-parte against defendant no. 2. 4. Defendant no. 2 died on 30.11.2014. The plaintiff moved an application seeking an exemption to substitute the legal heirs of defendant no. 2. For the simple reason that defendant no. 2 has not chosen to file his written statement. The application for seeking an exemption to substitute the legal heirs of defendant no. 2 was allowed by the trial court vide order dated 17.03.2015. 5. Defendant no. 1, who was not appearing before the trial court and against whom the case proceeded ex-parte, had preferred an application for substituting the legal heirs i.e. Sri Raj Kumar Suri, Mrs. Rita Suri and Smt. Rekha Madan. Defendant no. 3 filed a revision petition against the order dated 17.03.2015. Learned 1st Additional District Judge allowed the same on 28.08.2015. Hence, the present writ petition. 6. The fact of the matter is that defendant nos. 1, 3 and 4 were served by way of publication. They did not contest the suit. Defendant no. 2 died on 30.11.2014. He was a bachelor. Learned 1st Additional District Judge allowed the same on 28.08.2015. Hence, the present writ petition. 6. The fact of the matter is that defendant nos. 1, 3 and 4 were served by way of publication. They did not contest the suit. Defendant no. 2 died on 30.11.2014. He was a bachelor. His legal heirs were already on record, and despite that the revision petition has been allowed by the learned 1st Additional District Judge vide impugned order dated 28.08.2015. 7. Defendant no. 2 has not chosen to file his written statement. It is under these circumstances that the application seeking an exemption from bringing his legal heirs was allowed by the trial court. Defendant no.3 has not chosen to contest the suit, but has filed a revision petition before the 1st Additional District Judge against the order dated 17.03.2015. The brother of defendant no. 2 i.e., defendant no. 1 was already a party and Mrs. Rita Suri was also a party in the Original Suit. The only purpose of filing the revision petition against the order dated 17.03.2015 is now to step into the shoes of defendant no. 2, and to pursue the case as defendant nos. 1 and 3 against whom the matter was already proceeded ex-parte. Mrs. Rekha Madan was neither necessary party nor proper party. 8. Accordingly, writ petition is allowed. Impugned order dated 28.08.2015 passed by the 1st Additional District Judge, Dehradun is hereby set aside. However, it is directed that since the suit itself is old, the trial court shall decide the same within a period of six months from today.