ANILKUMAR DATTATREYA MODEY Vs. KAILASH SHRIRAM SHARMA

JUDGEMENT

(1.) AS common question of law and facts arise and are between the same parties and arising out of the common order passed by the learned trial Court below Exh.1 and Exh.110 in Civil Suit No.157/1983, Revision Application as well as Special Civil Application are heard and decided together and disposed of by this common judgment and order.

(2.) CIVIL Revision Application has been preferred by the applicant herein original plaintiff to quash and set aside the order passed by the learned trial Court below Exh.1 in CIVIL Suit No.157/1983 in dismissing the aforesaid suit as having been abated under Order 22 Rule 4(3) and Section 151 of the Code of CIVIL Procedure.

(3.) HEARD the learned advocates appearing for respective parties at length. At the outset, it is required to be noted that earlier the original plaintiff submitted the application Exh.77 for permitting the original plaintiff to bring the heirs of the original defendant on record and consequently the heirs of the original defendant were brought on record. It appears that simultaneously at the time of submitting the application Exh.77, the plaintiff submitted the application Exh.78 for an appropriate order of setting aside the abatement. However, in view of the order passed below Exh.77, the plaintiff withdrew the aforesaid application Exh.78. It is required to be noted that the order passed by the learned trial Court below Exh.77 has attained finality as the same has not been challenged by the heirs of the original defendant. That thereafter as in the meantime the disputed property in question came to be transferred in favour of respondent No.2 herein, the plaintiff submitted the application Exh.110 permitting the plaintiff to join the subsequent purchaser as party defendant and consequently permitting the plaintiff to amend the plaint. By the impugned common order, the learned Judge has not only dismissed the application Exh.110 rejecting the application submitted by the plaintiff for permitting him to join the subsequent purchaser as party defendant and to amend the plaint, the learned Judge has dismissed the suit as having been abated mainly and solely on the ground that when the earlier order was passed below Exh.77, there was no application for condonation of delay and therefore, the heirs would not have been permitted to brought on record. It is required to be noted that it was nobody's request to dismiss the suit as having been abated. Even otherwise the learned Judge could not have reviewed the order passed by his predecessor below Exh.77. Under the circumstances, the order passed by the learned trial Court below Exh.1 dismissing the suit as having been abated deserves to be quashed and set aside.