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2018 DIGILAW 2053 (RAJ)

Dharu Ram Meena @ Dharu S/o Aasha Ram Meena v. Kanka Devi D/o Chunni Lal W/o Shri Nena Ram Meena

2018-10-05

DINESH MEHTA

body2018
JUDGMENT : 1. The present writ petition is directed against the order dated 01.06.2017 as well as order dated 01.08.2018 passed by learned Additional Senior Civil Judge No.2, Bhilwara, whereby the respondent No.1 - Kanka Devi has been substituted as legal representative of the original plaintiff - Aasha Ram. 2. Briefly stated the facts leading the petitioner to file the present writ petition are that the plaintiff - Aasha Ram had filed a suit for cancellation of sale deed dated 11.07.2016. During the suit proceedings, the original plaintiff - Aasha Ram died, for which Kanka Devi, the respondent No.1 herein filed an application under Order XXII Rule 3 of the Code of Civil Procedure, which was granted by the Court on 01.06.2017, in wake of the consent given by the defendant’s (petitioner’s) counsel. 3. Subsequent thereto, he realised that his counsel had given a consent being oblivious of the fact that said Kanka Devi - applicant was not a daughter of the plaintiff. Such being the situation, the present petitioner filed a review application dated 17.08.2017 before the Trial Court inter alia contending that newly substituted plaintiff - Kanka Devi is not the daughter of plaintiff - Aasha Ram and as such her substitution be recalled. 4. Said application dated 17.08.2017 filed by the petitioner came to be rejected by the Trial Court, inter alia observing that the same does not fall within the scope of the power to review as enshrined under Order XLVII Rule 1 of the Code of Civil Procedure. Mr. Bansal, learned counsel for the petitioner contended that the learned Court below has erred in rejecting petitioner’s application under Order XLVII Rule 1 of the Code of Civil Procedure, inasmuch as there was an apparent error in order of the Trial Court may be as a result of bonafide lapse on the part of his lawyer. Respondent No.1 has been substituted as legal representatives, despite the fact that she was not daughter of the plaintiff, he contended. 5. Mr. Charan, learned counsel appearing for the respondents supported the order under challenge. He however maintained that if the order impugned passed by the Trial Court is set aside, and the petitioner - defendant is given a liberty to file reply to the respondents’ application under Order XXII Rule 3 of the Code of Civil Procedure, the respondent may also be given liberty to lead evidence/file documents. 6. He however maintained that if the order impugned passed by the Trial Court is set aside, and the petitioner - defendant is given a liberty to file reply to the respondents’ application under Order XXII Rule 3 of the Code of Civil Procedure, the respondent may also be given liberty to lead evidence/file documents. 6. In this view of the matter, it is clear that relevant facts could not be brought to the notice of the Trial Court and the Trial Court has decided the application under Order XXII Rule 3 of the Code of Civil Procedure essentially on the basis of consent given by the defendant’s counsel. This Court is of the firm view that the petitioner deserves an opportunity of filing reply to the application for substitution, filed by the respondent No.1 - Kanka Devi. Hence, the impugned order dated 01.06.2017 as well as order dated 01.08.2018 are quashed and set aside. The petitioner may file a reply to the application under Order XXII Rule 3 of the Code of Civil Procedure, filed by the respondents on or before the next date, which is reported on 24.10.2018. Both the parties shall have rights to produce their evidence and documents in this regard. 7. Needless to observe that the Trial Court shall decide the subject application under Order XXII Rule 3 of the Code of Civil Procedure afresh, in accordance with law. 8. Writ petition stands allowed.