CHANDRU KRISHNA RAUT Vs. VAMAN GOPAL RAUT

JUDGEMENT

(1.) The challenge in this petition, at the instance of the Legal Representatives of the original defendant no.1, is to two orders both dated 26/07/2010 below Exh.77 and Exh. 79, passed by the learned Civil Judge, Senior Division, Bicholim in RCS No.153/2000.

(2.) The brief facts are that the respondent nos.1(a) to 1(g) and respondent no.2 have filed the aforesaid suit, in which the defendant nos.4, 5, 6, 7 and 12 were proceeded ex-parte. The defendant no.5 is the widow of defendant no.4- Deu Raut. Defendant no.4 died during the pendency of the suit on 18/05/2008. It appears that the respondents/ plaintiffs initially filed an application under Order XXII, Rule 4(4) of the Code of Civil Procedure (CPC, for short), seeking exemption from bringing the legal representatives of deceased defendant no.4 on record, on the ground that the said defendant was already proceeded ex-parte. This application was dismissed by the Trial Court on 04/02/2009.

(3.) The learned Counsel for the respondents/ plaintiffs pointed out the rojnama dated 04/02/2009, in which the Trial Court has recorded that the plaintiffs can file an appropriate application in this regard. It appears that the respondents/ plaintiffs filed an application for bringing the legal representatives of defendant no.4 on record. The learned Trial Court dismissed the said application by an order dated 12/08/2007, inter alia, on the ground that the said application was not accompanied by an application for condonation of delay. It appears that the suit proceeded further and during the course of evidence of PW1, an objection was raised on behalf of the original defendant no.1 that the suit stands abated. This prompted the respondents/ plaintiffs to file an application (Exh.79) purportedly under Order I, Rule 10 of CPC for arraying the legal heirs of the deceased defendant no.4 on record. This application has been allowed subject to costs of Rs. 300/-. It appears that the original defendant no.1 filed an application Exh.77 for dismissal of the suit as having abated, which was rejected by the order of even date. These two orders are subject matter of challenge in this petition.