SCINDIA POTTERIES Vs. CHAND

JUDGEMENT

(1.) This is a second appeal arising out of the decision of the Trial Court and of the First Appellante Court wherby the application of the petitioner under Order 22 Rule 4 (5). C.P.C. read with S. 5 of Limitation Act for bringing on record the L. Rs. of the deceased respondent was dismissed and such dismissal was upheld respectively.

(2.) The application was duly supported by an affidavit and was presented by counsel, who had his vakalatnama on record. Through oversight, the application itself was not signed cither by the appellant or the counsel. At the time, the application was taken up for hearing, the ARC dismissed the application on the sole ground that the application was not signed by the party or the counsel. Against this order, an appeal was filed which was dismissed in limine.

(3.) In this case, it may be noted that counsel for the respondent did not file an application under Order 22 Rule 10-A, nor did he give any notice of any such application to counsel for the appellant and the fact of the death of the respondent escaped notice of appellant's counsel and he could not come to the Court on account of lawyer's strike. However, the question of delay appears to have not been considered and the Court has dismissed the application only on the sole ground of it having not been signed. Counsel at the Bar stated that his request both before the Trial Court as well as before the First Appellate Court to allow him to sign the application was also not granted. This position is not disputed before me by the respondent's counsel.