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2019 DIGILAW 1492 (HP)

Lakhbir Singh v. Dev Kaur

2019-10-01

AJAY MOHAN GOEL

body2019
JUDGMENT : Ajay Mohan Goel, J. As per report of the Registry, respondents No. 3 and 4 have not been served, as they are stated to be residing in Ludhiana. Learned counsel for the petitioner submits that for the purpose of adjudication of present petition, the presence of respondents No. 3 and 4 is not required. 2. The grievance of the petitioner herein is with regard to an order, dated 21.05.2018, which has been passed by the learned Trial Court on an application filed by the plaintiff before the learned Trial Court under Order XXII, Rule 4 read with Section 151 of the Code of Civil Procedure to bring on record the legal representatives of deceased defendant No. 1 before the learned Trial Court. The application is on record as Annexure P-3. A perusal of the averments made in the application demonstrates that it was mentioned therein that defendant No.1-Shri Tarsem Singh had died on 29.09.2017, leaving behind following legal heirs/ representatives: ?(a) Smt. Dev Kaur (sister of deceased Tarsem Singh/plaintiff). (b) Sh. Prem Singh (brother of deceased defendant No. 1).? Accordingly, a prayer was made in the application to substitute the deceased defendant by bringing on record his legal heirs/representatives as defendants. 3. The petitioner herein contested the said application by filing reply thereto. His stand was that the application was not maintainable, because the proposed legal representatives had not indeed inherited the property of deceased defendant No. 1, who during his lifetime had executed a Will in favour of the petitioner, vide which, he bequeathed his estate to the petitioner. 4. Vide impugned order, the application filed by the plaintiff before the learned Trial Court, i.e., respondent No. 1 herein, stands allowed by the learned Trial Court by passing the following order: ?Photocopy of death certificate is also placed on record and as per the death certificate Tarsem Singh died on 20.09.2017. The factum of death is not disputed but as per the respondent the L.Rs. mentioned in the application are not the legal representatives of the deceased and as per the registered Will of Tarsem Singh, Lakhbir Singh is the L.R., of the deceased. The factum of death is not disputed but as per the respondent the L.Rs. mentioned in the application are not the legal representatives of the deceased and as per the registered Will of Tarsem Singh, Lakhbir Singh is the L.R., of the deceased. From the perusal of record, it is clear that the L.R. Prem Singh appeared before the Court and he stated that he is not interested to contest the suit and another L.R., is already the plaintiff and Lakhbir Singh, who is alleged to be the L.Rs. of the deceased is also the defendant No. 2 in this case, who is represented by the Ld. Counsel. Therefore, I find that there is no requirement for summoning any person, hence I allow the present application in the interest of justice which is filed within the period of limitation Application accordingly stands disposed. Be tagged with main case file. 5. Having heard learned counsel for the parties and having perused the impugned order, in my considered view, the same per se is not sustainable in law. I say so for the reason that the objection which stood taken by the petitioner herein in the reply filed to the application filed under Order XXII, Rule 4 of the Code of Civil Procedure has not been dealt with by the Officer in the impugned order. Besides this, the impugned other otherwise also is not sustainable in law, because whereas on one hand, it stands recorded in the same that as one of the proposed legal representatives of deceased defendant was a party in the suit as a plaintiff and the other proposed legal representative refused to contest the case, there was no need to summon any person, yet thereafter, learned Trial Court went on to allow the application. This contradiction in the impugned order also could not be explained by the learned counsel for the contesting respondents during the course of arguments. 6. Accordingly, the petition is partly allowed. Impugned order, dated 21.05.2018, passed in CMA No. 1696 of 2017 filed in Civil Suit No. 752 of 2013, is set aside. Application filed under Order XXII, Rule 4 read with Section 151 of the Code of Civil Procedure is ordered to be revived and the learned Trial Court is directed to pass afresh orders upon the same, after hearing all the parties concerned. Application filed under Order XXII, Rule 4 read with Section 151 of the Code of Civil Procedure is ordered to be revived and the learned Trial Court is directed to pass afresh orders upon the same, after hearing all the parties concerned. Parties through learned counsel are directed to appear before the learned Trial Court on 4th November, 2019. Petition stands disposed of in above terms, so also pending miscellaneous applications, if any.