GANGA PRASAD Vs. SHANTI DEVI

JUDGEMENT

(1.) . The petitioners, who have been substituted as legal representatives of the deceased defendant, have filed this revision petition under Section 115 of the CPC assailing the order of a Civil Judge dated 27.1.2001 by which he had dismissed an application filed by the petitioners under Order 18 Rule 17A CPC read with Section 151 CPC and another application filed by these petitioners under Order 16 Rule 3 CPC.

(2.) . Briefly stated the facts are that the respondent had filed a suit for possession against Ganga Prasad, who has since died and is now represented by the petitioners, on the averment, in short, that Ganga Prasad deceased was once a tenant in the suit shop under the predecessors-in-interest of the plaintiffs and that in execution of the eviction order the possession of the suit shop was taken over by them and that Ganga Prasad thereafter illegally and forcibly had taken unauthorised possession of the suit shop. This suit was resisted by Ganga Prasad. The evidence of the plaintiff concluded in the year 1994. Ganga Prasad thereafter died on 16.8.1999 when the suit was pending for hearing of arguments. The petitioners, were then brought on record as LRs of the deceased Ganga Prasad.

(3.) . The petitioners have submitted an application dated 9.10.2000 under Order 18 Rule 17A CPC with the allegation that the plaintiff claims herself to be the owner of the suit shop; she alleged that Ganga Prasad was in unauthorised occupation in the said shop; Ganga Prasad was previously a tenant under the predecessor-in-interest of the plaintiff and was evicted in execution of a decree; subsequently Ganga Prasad had taken forcible possession of the premises by breaking open the lock and; the decree was executed in the absence of the judgment debtor but wife of the judgment debtor Smt. Nirmala Devi who was present had signed the warrant of possession. It is further aliened that Ganga Prasad, however, had denied that he was ever dispossessed from the disputed shop by the predecessor-in-interest of the plaintiff and the predecessor-in-interest of the plaintiff seems to have manipulated some documents with malafide intention. After the death of Ganga Prasad a new counsel was engaged by the petitioners and during discussion with him it transpired that Ganga Prasad, deceased and the counsel inadvertently and by oversight had not examined Smt.Nirmala Devi as a witness in this case. Her testimony is necessary since the allegation is that the warrant of possession was executed and the possession of shop was taken over in her presence. The respondent has intentionally not made her a party to the suit as legal representative of the deceased. It is, therefore, prayed that the petitioners should be permitted to examine Smt.Nirmala Devi as a witness.