MALURAM SINGHANIA Vs. GIRDHAR & OTHERS

JUDGEMENT

(1.) The petitioner is plaintiff before the trial Court. Suit filed for declaration and injunction with regard to suit land was dismissed on merits on 11-9-1995. Feeling dissatisfied and aggrieved against the judgment and decree dismissing the suit, the petitioner / plaintiff preferred an appeal under Sec. 96 of the Civil Procedure Code on 16-2-1996 which came to be dismissed for want of prosecution on 18-6-2003 and in order to get the appeal restored, he preferred an application under Order 41, Rule 19 of the Civil Procedure Code assigning the cause for his nonappearance when the case was called-up for hearing, on the next day itself, but in the meanwhile, defendants No.2 and 4 died and he preferred an application for substitution under Order 22, Rule 4 of the Civil Procedure Code which was rejected by the impugned order and thereby also consequently, the application under Order 41, Rule 19 of the Civil Procedure Code was rejected. Questioning legality and validity of the order rejecting application under Order 41, Rule 19 of the CPC, the petitioner / plaintiff has preferred this revision under Sec. 115 of the CPC.

(2.) Mr. Manoj Paranjpe, learned counsel appearing for the petitioner / plaintiff would submit that the provisions contained in Order 22, Rule 4 of the Civil Procedure Code are not applicable in the instant case i.e. proceedings like Order 41, Rule 19 of the Civil Procedure Code and therefore the first appellate Court is absolutely unjustified in dismissing the application under Order 41, Rule 19 of the Civil Procedure Code as abated and consequently, the impugned order deserves to be set aside. He placed heavy reliance upon a Division Bench's decision of the M.P. High Court in the matter of Sayeeda Begam and another Vs. Ashraf Hussain Anwar Hussain and others, 1980 M.P.L.J. 46 : AIR 1980 MP 12 followed by that Court in the matter of Shikhar Chandra Jain (since dead) through L.Rs. Anil Kumar Jain and others Vs. State of M.P. and others, 2004(4) M.P.H.T. 402.

(3.) On the other hand, Mr. P.P. Sahu, learned counsel appearing for respondents No.1, 2, 5 and 6, would submit that against the order rejecting application under Order 41, Rule 19 of the CPC, appeal under Order 43, Rule 1 (t) of the Civil Procedure Code would lie, as such, the revision is not maintainable. He would further submits that Order 41, Rule 19 of the Civil Procedure Code includes Order 9 therefore, Order 22 is applicable in the miscellaneous proceeding including while considering application under Order 41, Rule 19 of the Civil Procedure Code and placed reliance in the matter of Mst. Nurnahar Bewa and Anr. Vs. Rabindra Nath Dev and Ors., AIR 1988 Cal 358 and Puran Singh and others Vs. State of Punjab and others, AIR 1996 SC 1092 to buttress his submission.