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2018 DIGILAW 620 (HP)

Paras Ram v. Manoj Sharma

2018-04-11

SURESHWAR THAKUR

body2018
JUDGMENT : Sureshwar Thakur, J. During pendency of civil Suit No. 235 of 2014, titled as “Manoj Sharma versus Bhedi Devi”, co-defendant No. 1, expired on 18.10.2014, (a) however, no steps, within 90 days therefrom, were endeavored to be taken by the plaintiff, for begetting her substitution by her LRs, (b) rather an apposite application was moved, on 23.9.2015. Upon CMA No. 206/VI/2015, the learned trial Court, ordered for substitution of deceased co-defendant, by her LRs, as disclosed in the application, also, pronounced an order (c) that given the estate of deceased co defendant No. 1, being represented by co defendant No. 2, latter whereof being one of the LRs of deceased co-defendant No. 1, hence rejected the argument addressed before it, by the learned counsel for the defendant, that rather the aforesaid lapses, hence rendering, the suit, to, on demise of defendant No. 1, hence abate in its entirety, even qua co-defendant No. 2. The defendants, are aggrieved by the impugned order, hence motion this Court. 2. For testing the validity of espousal (s) made before this Court, by the learned counsel for the petitioner, it is imperative, to make illusion (s) to the zimini orders, copies whereof are appended with the instant petition, (i) perusal (s) thereof disclose, that, apparently the apposite permission was granted, on 16.5.2015, by the learned trial Judge, to the plaintiff, whereat the counsel for defendant No. 2 was also present, (ii) however, thereat, and, besides subsequently upto a pronouncement being made upon the apposite application, no scribed motion, was made by the plaintiff, before, the learned trial Court qua the apposite application being disallowed, given for want of apposite steps being taken within time, thereupon the suit abating, in its entirety, (iii) ill fate whereof, repeatedly arising from the factum, of, no apposite application being preferred, before the learned trial Judge, within the mandated period of time. Absence of apposite scribed motions, by the plaintiff, before the learned trial Judge, is also an evident display of the plaintiff being estopped, to raise the aforesaid contention, before this Court. 3. Absence of apposite scribed motions, by the plaintiff, before the learned trial Judge, is also an evident display of the plaintiff being estopped, to raise the aforesaid contention, before this Court. 3. Be that as it may, even otherwise the defendants, had, resisted the apposite application, moved by the plaintiff, on the ground, that, despite his awareness, and, knowledge about demise of co-defendant No. 1, his omitting to take appropriate steps, within time, hence perse visiting upon the apposite application, the ill consequence (s), of its entailing dismissal, especially when no apposite explication, was purveyed, for condoning the delay in the belated institution, of the apposite application, before the learned trial Judge. The aforesaid contention appears to be untenable, given no material existing on record, hence for sustaining the aforesaid espousal. The absence of aforesaid material, does, constrain this Court to infer that there was, no, willful dereliction/omission, on the part of the plaintiff, and, his counsel, in not promptly instituting the apposite CMA, before the learned trial Judge, hence dehors any explication, being purveyed, for the belated institution of the aforesaid CMA, yet not affecting, the pronouncement, on merits, made upon the apposite application. 4. Furthermore, it is apparent, on a reading, of, the memo of parties, of the apposite civil suit, of, all the proposed LRs of Paras Ram, being fathered by one Ses Ram, and, the apposite application contains recital (s), of, the LRs of deceased co-defendant No. 1, alike co-defendant No. 2, being fathered by one Ses Ram, thereupon it appears, as submitted by the learned counsel, for the defendant, that deceased co-defendant No. 1, was, the grand-mother of co defendant No. 2, besides also is the grand mother of other LRs, disclosed in the apposite CMA. Moreover, when it remains uncontrovered, that, dehors the other LRs, proposed to be substituted in place of deceased co-defendant No. 1, yet, impleaded co-defendant No. 2 alone held, the apposite capacity, to, on her demise, hence represent her estate, thereupon even, if, assumingly no orders stood rendered, for deceased co-defendant No. 1 being substituted by her LRs, other than Paras Ram, rather, with the latter being already arrayed as co-defendant No.2, in the apposite civil suit. In aftermath, with co-defendant No. 1, solitarily holding the capacity, to represent the estate of deceased co-defendant No. 1, hence, it cannot be said, that, even if no explicit order was made by the learned trial Judge, vis-à-vis, abatement of the suit, thereupon, immediately on demise of codefendant No. 1, especially with no apposite motion being made within time, the ill fate (s), of, the suit automatically abating, in its entirety, hence befalling thereupon. 5. Accordingly, there is no merit in the instant revision petition, and, the same is dismissed. The impugned order of 14.9.2017, is maintained and affirmed. All pending application (s), if any, are also disposed of. No costs.