NITIN AGGARWAL Vs. SANTOSH AGGARWAL AND ORS.

JUDGEMENT

(1.) PETITIONER as well as proforma respondent Nos. 4, 5 and 6 are plaintiffs in O.S. No. 466 of 2008. Suit, being O.S. No. 466 of 2008, was filed by the plaintiffs for the declaration to declare that plaintiffs have matured their title by way of adverse possession and are owners of the property in question and further for permanent prohibitory injunction restraining the original defendants not to make any interference by any means in the possession of the plaintiffs over the property in question. Initially, both the defendant Nos. 1 and 2 were proceeded ex -parte vide order dated 24.05.2012. Thereafter, on the application of the defendant No. 2, moved under Order 9 Rule 7 of the C.P.C., ex -parte proceedings against the defendant No. 2 were set aside and he was granted time to file written statement vide order dated 01.08.2013.

(2.) ORIGINAL defendant No. 1 expired on 07.03.2013. Thereafter, plaintiffs moved application under Order 22 Rule 4 of the C.P.C. for the substitution of the LRs of the original defendant No. 1 which was allowed by the learned Trial Court and, thereafter, respondent Nos. 1 and 2 herein were substituted as legal heirs of the original defendant No. 1 and they filed their written statement before the Trial Court.

(3.) THEREAFTER , plaintiffs moved an application, paper No. 76 -C, to the effect that since original defendant No. 1 was directed to be proceeded ex -parte vide order dated 24.05.2012 and ex -parte proceeding order dated 24.05.2012 was never set aside or recalled, therefore, legal heirs of original defendant No. 1 had absolutely no legal right to file their written statement without setting aside the ex -parte order. Consequently, written statement filed by the LRs of defendant No. 1 be returned to them.