JAGDISH PRASAD Vs. SUKH RAM

JUDGEMENT

(1.) An application has been filed for bringing on record the legal representatives of deceased-Gulabi Devi, petitioner No. 2. The said application shows that Gulabi Devi died on February 7, 1997 when the matter was pending in the High Court. Since Gulabi Devi died when the matter was pending before the High Court, the application for bringing on record her legal representatives is not maintainable in this Court. The names of petitioners Nos. 2(a) to 2(p) in the Special Leave Petition are directed to be deleted from the array of parties. The failure to bring on record the legal representatives of Gulabi Devi is of no consequence since Gulabi Devi had been impleaded as the legal representative of Hari Ram, one of the plaintiffs, and the estate of Hari Ram is represented by petitioners Nos. 1 and 3, the other legal representatives of Hari Ram.

(2.) Special leave granted.

(3.) The parties are the descendants of a common ancestor. The plaintiffs filed a suit for partition wherein the trial Court passed a decree dividing the property equally between the two branches. Feeling dissatisfied with the said decree of the trial Court, the plaintiffs filed an appeal (Civil First Appeal No. 134 of 1986) before the High Court of Rajasthan, Jaipur Bench, Jaipur. The defendants-respondents also filed a cross appeal (Civil First Appeal No. 49 of 1986) against the decree of the trial Court. The appellants had engaged Shri R. P. Goyal as their counsel to represent them in both the appeals. After the death of Shri R. P. Goyal in May, 1989 the appellants engaged Shri P. C. Jain, Advocate to represent them in both the matters. Shri P. C. Jain filed his Vakalatnama in Civil First Appeal No. 134 of 1986. Civil First Appeal No. 134 of 1986 came up for hearing before the High Court on July 18, 1989, but since Shri Jain was not present in the Court when the matter was called Civil First Appeal No. 134 of 1986 was dismissed for default. The said appeal was, however, subsequently restored on December 20, 1989. The other appeal (Civil First Appeal No. 49 of 1986) filed by the defendants-respondents came up for hearing before the High Court on July 21, 1989 on which date, in the absence of the counsel for the appellants, the said appeal was decided ex parte against them. The appellants submitted an application for setting aside the said ex parte order dated July 21, 1989 in Civil First Appeal No. 49 of 1986. The said application was dismissed by the learned single Judge by order dated January 19, 1990 on the view that there was no Vakalatnama in favour of Shri P. C. Jain, Advocate in respect of Civil First Appeal No. 49 of 1986 and he had no authority to represent the appellants herein. Special appeal filed against the said order of the learned single Judge was dismissed by the Division Bench of the High Court by the impugned judgment dated April 23, 1997. The learned Judges on the Division Bench of the High Court have agreed with the view taken by the learned single Judge that since there was no Vakalatnama in favour of Shri P. C. Jain in Civil First Appeal No. 49 of 1986, he could not appear for the appellants herein in the said case and, therefore, he could not move the application for setting aside the ex parte decree passed in the said appeal.