MOHD SALEEM Vs. NASEER AHMED

JUDGEMENT

(1.) CM Nos. 11177/2006 and 11178/2006 These applications have been filed to bring on record the legal heirs of the deceased respondent who passed away on 10-9-2005. The legal heirs are set out in para 2 of the application. Since the factum of the demise of the respondent was not known earlier and only came to be known in the proceedings in Court the application has been filed for condonation of delay. The legal heirs have been served but none has put an appearance. For the reasons stated in the application, the delay in filing the application is condoned and the legal heirs as set out in the application are brought on record. Applications are allowed. Amended Memo of parties is taken on record. CM (M) No. 580/2003

(2.) Learned counsel for the original respondent Mr. R. K. Saini states that he has no instructions on behalf of the legal representatives. The legal representatives have been served but have failed to enter appearance and are thus proceeded ex parte.

(3.) On hearing learned counsel for the petitioner, I am of the considered view that the trial Court failed to exercise jurisdiction vested in it by law while dismissing the application for amendment of the plaint in terms of the impugned order. The suit as originally framed also was for mandatory injunction but the petitioner rightly sought to incorporate the relief of possession by paying court-fee on the same since it is the case of the petitioner that the original respondent was in possession and the petitioner was seeking possession from the respondent. The only reason given by the trial Court for rejection of the amendment is that the application has been filed after framing of issues and that trial is a consequence of framing of issues. The framing of issues was treated as a stage of trial in the suit.