PARMA NAND Vs. MANI RAM AGGARWAL & ORS.

JUDGEMENT

(1.) AT the commencement of hearing in this appeal, Counsel for the respondent No. 1 states that respondent No. 1 expired on 14.9.2009. The counsel who appears for other respondents was also the counsel for respondent No. 1 and in terms of the duty fixed on the counsel under Order 22 Rule 10A of the Code of Civil Procedure, 1908 (CPC), the counsel did not inform the factum of death of respondent No. 1. In any case, the controversy in this regard is immaterial inasmuch as Mani Ram Aggarwal was the husband of respondent No. 2/defendant No. 2 and therefore so far as the present appeal is concerned, the interest of the respondent No. 1 is represented. I therefore accept the oral prayer of the appellant to treat the respondent No. 2 as a legal heir of respondent No. 1. Of course, this is subject to just exceptions and the appellant will subsequently in the subject suit bring on record all the legal heirs of the deceased respondent No. 1. This Regular First Appeal filed under Section 96 CPC impugns the judgment of the trial Court dated 18.11.2004 dismissing the suit on the preliminary issue by holding that the suit was barred under Order 2 Rule 2 CPC.

(2.) THE facts of the case are that the appellant/plaintiff filed a suit for declaration, possession and injunction. This suit was originally filed in the original side of this Court and whereafter due to change of pecuniary jurisdiction, same was transferred to the District Court. The following preliminary issue was decided by the trial Court: -

(3.) TRIAL Court has dismissed the suit by making the following observations: -