N G NANDA Vs. GURBAX SINGH

JUDGEMENT

(1.) This is an application for review under Section 114 read with Order 47 Rule 1 of the Code of Civil Procedure, 1908 (in short 'the CPC') seeking review of the order dated 25th May, 2010 passed in LPA No. 373/2010.

(2.) To appreciate the grounds urged in the review, it is necessary to refer to the brief resumé of facts. The appellants as plaintiffs had filed a suit for specific performance of agreement against the first respondent and late Gulzari Lal Nanda, who was the original defendant No.2 in the suit. In the year 1983, Vivek Nanda, son of Gulzari Lal Nanda, filed an application for impleadment on the ground the said property belongs to the HUF. The learned trial judge, by order dated 29th August, 1984, allowed the application and he was impleaded as a party. The original defendant, G.L. Nanda, died on 15th January, 1998. Regard being had to the pecuniary jurisdiction, the matter was transferred to the district court where it was listed on 6th May, 2004. The plaintiffs could not appear before the court and the defendant No.1, namely, N.G. Nanda, informed the court on 20th September, 2004 that G.L. Nanda had expired. The suit was dismissed on 26th October, 2004. The plaintiffs filed an application for restoration. On inspection of the record, the plaintiffs found that G.L. Nanda had passed away and, accordingly, an application under Order 22 Rule 4 of the CPC was filed for impleadment of his wife in his place. An objection was filed stating, inter alia, the suit had abated on 16th April, 1998. An application was filed by the plaintiffs under Order 22 Rule 9 of the CPC praying for setting aside of abatement and bringing Smt. Nanda on record in place of the original defendant, G.L. Nanda. The trial judge disallowed the application for setting aside the abatement.

(3.) Being dissatisfied with the aforesaid order, FAO No. 42/2008 was filed before this Court. It was contended that when the son of Late G.L. Nanda was on record, the suit could not have abated. The learned Single Judge referred to number of decisions on the effect of abatement or dismissal and eventually came to hold as follows: -