LAKSHMI Vs. KHADER BASHA

JUDGEMENT

(1.) The plaintiff is the petitioner. The plaintiff filed O.S. No. 2393 of 1993 against the respondent herein and one Nazeer, who is now deceased, for vacant possession of the suit property. The petitioner's husband, one Sreenivasagam filed O.S. No. 5751 of 1994 for permanent injunction against the respondent herein and the same Nazeer referred to above. The said Nazeer died on 17.11.1994 leaving behind his wife and three children. An application was filed by the petitioner herein for bringing on record, the legal representatives in O.S. No. 2393 of 1993. Since the relief in O.S. No. 5751 of 1994 was only for bare injunction, restraining respondents not to interfere with the electricity connection, the petitioner was advised to give up the case against the Nazeer who was the first defendant in the suit, since he had died. But, by mistake, learned Counsel, instead of making the endorsement in O.S. No. 5751 of 1994, made the endorsement in O.S. No. 2393 of 1993. which is a suit for delivery of possession. This is the case of the petitioner, who, thereupon, filed I.A. Nos. 12980 and 12981 of 1998 to set-aside the order passed pursuant to the endorsement and to restore the suit, which was dismissed against the first defendant. The learned Judge dismissed the applications on the ground that he had no power to set-aside the endorsement and there is no provision for the same in the C.P.C.

(2.) Mr. Irwin Aaron, learned Counsel for the petitioner submitted that the O.S. No. 2393 of 1993 was a suit for recovery, of possession and there was no reason, why the petitioner would make an endorsement, that she was not proceeding against the first respondent and she was giving him up. The genuine reason given by the petitioner was rejected by the Court below erroneously. He was referring to the application filed by her under Order 22, Rule 4, C P.C. for bringing on record, the legal representatives, which is I.A.S.R/ No. 3623 of 1995 and the petitioner had taken steps to bring on record, the legal representatives The Court below ought to have considered the effect of that, while disposing of the application. The endorsement made on 7.6.1996 to give up the deceased first respondent was made only on account of a genuine mistake and this ought to have been accepted by the Court. He referred to three decisions reported in Rameswar Sarkar v. State of West Bengal & Ors.: Mohd. Shamsuddin Quadri v. State Bank of Hyderabad, Nallakuntia Branch; and Dadu Dayal Mahasabha v. Sukhdev Arya & Anr.

(3.) Learned Counsel for the respondent, on the other hand, said that the suit in O.S. No 5751 of 1994 was filed by one Advocate by name P G. Padmanabhan and the suit in O.S. No. 2393 of 1993 was filed by an Advocate, one A. V. Munuswamy and, therefore, the averment that the Advocate instead of making an endorsement in O.S. No. 5751 of 1994, made the endorsement in O.S. No. 2393 of 1993, cannot be correct. And it is also stated that there is no petition for bringing the legal representatives of the deceased first respondent in O.S. No. 5751 of 1994 and, therefore, this order was perfectly correct and need not be interfered with.