HARJIT KAUR KULJITSINGH KOHLI Vs. PADMAVATI J SETHIA

JUDGEMENT

(1.) HEARD learned Advocates for the petitioner and the respondent No. 1. The petitioner challenges the order dated 15th October, 2001 passed by the lower Appellate Court to the extent it rejects the application (Exhibit 26) filed by the petitioner on 23rd July, 1999 during pendency of the appeal for deletion of her name from the appeal memo on the ground that the suit filed against original defendant Khuljitsingh had abated as the respondent/plaintiff had not filed an application to bring the legal representatives of deceased Khuljitsingh on record within prescribed period. Though the impugned order dismisses the appeal filed by the petitioner and other appellants, along with the said application (Exhibit 26), on merits, the challenge is restricted to the order in relation to the said application (Exhibit 26), as this Court has already dismissed another writ petition filed by other respondents being Writ Petition No. 5588 of 2002 on 9th October, 2002 thereby confirming the order of eviction against the legal representatives of original defendant Khuljitsingh.

(2.) DRAWING attention to the order dated 5th January, 1995 which was passed by the trial Court during pendency of the suit on an application filed by the plaintiff seeking to bring the legal representatives of deceased Khuljitsingh on record, and placing reliance on the decision of Gujarat High Court in the matter of (State of Gujarat v. Chandramani Shankar Jadhavlal Sanghvi and others) reported in A. I. R. 1963 Gujarat 243, it was sought to be contended that the respondent/plaintiff having failed to bring the legal heirs of deceased Khuljitsingh on record within the prescribed time, the suit had already abated and, this is apparent from the cause title of the decree which discloses the name of Khuljitsingh as the defendant even though he had already expired before disposal of the suit. Attention was also drawn to Order VI, Rule 18 of the Code of Civil Procedure to contend that on account of failure on the part of respondent/plaintiff to secure favourable order on his application to bring the legal representatives on record and, thereafter to bring those legal representatives on record by amending the cause title within specified period, the suit had already abated and, the lower Appellate Court had no jurisdiction to cure the said defect in the suit while disposing the appeal.

(3.) THE lower Appellate Court in the impugned order has observed that the respondent/plaintiff had in fact, filed an application (Exhibit 105) on 16th August, 1993 to bring on record the legal representatives of deceased Khuljitsingh within the time limit prescribed by law. However, the trial Court failed to pass a formal order directing the legal representatives to be brought on record as it being a ministerial act and that the petitioner along with other legal representatives had participated in the proceedings before the trial Court as well as had filed the appeal by impleading themselves as the appellants. The objection which is sought to be raised under Order XXII, Rule 4 of the Code of Civil Procedure is clearly of a technical nature and, therefore, has dismissed the said application.