LAWS(BOM)-2019-10-255

SAMAJ BHUSHAN GRIHA Vs. SHANKAR

Decided On October 10, 2019
Samaj Bhushan Griha Appellant
V/S
SHANKAR Respondents

JUDGEMENT

(1.) Rule. Heard finally with consent of counsel for the parties.

(2.) The facts relevant for adjudicating the challenges raised in the present writ petition are that the plaintiff Society filed a suit for specific performance of an agreement dated 16/05/1988 by which the defendant No.1 had agreed to sell land admeasuring 1H.03R in favour of the Society. Other ancillary reliefs were also sought for. During pendency of the suit the defendant No.1 expired. By moving an application at Exhibit-87 which was allowed, the legal heirs of defendant No.1 were included in the plaint on 02/03/2009. However on the ground that the plaintiff had not taken any steps for filing an application for issuance of summons to secure the presence of legal heirs, the trial Court on 11/02/2011 dismissed the suit against the legal heirs of defendant No.1. Thereafter on 03/02/2011 the trial Court passed an order below Exhibit-41 holding that civil Court had no jurisdiction to entertain the suit and that the suit was also filed beyond the period of limitation. The plaintiff filed an appeal challenging the said order. In that appeal it was also prayed that the order dated 11/02/2011 be also set aside. The appellate Court by its judgment dated 30/04/2014 allowed the said appeal and restored the suit for adjudication. The respondent No.4 herein challenged that order by filing Appeal Against Order No.55/2014. By judgment dated 24/08/2015 that appeal came to be dismissed as a result of which the order restoring the suit attained finality. After restoration of the suit the plaintiff filed another application at Exhibit-92 on 30/10/2015 praying that the order dated 11/02/2011 be set aside and the suit be restored against the legal heirs of defendant No.1. This application was opposed by defendant No.4 and by order dated 04/01/2017 the trial Court rejected the said application. Being aggrieved the plaintiff has challenged the said order.

(3.) Shri Masood Shareef, learned counsel for the petitioner submitted that after the suit was dismissed against the legal heirs of the defendant No.1 on 11/02/2011 the trial Court considered the question of jurisdiction and from 03/03/2011 to 24/08/2015 the aspect of jurisdiction was being adjudicated. He submitted that the order dated 11/02/2011 had been challenged in R.C.A. No.183/2012 wherein the order dated 11/02/2011 was also challenged. However there was no adjudication of that question. After the suit was restored, the application was immediately moved on 30/10/2015 and hence the trial Court ought to have allowed that application. He submitted that since the suit was for specific performance of the agreement entered into by the defendant No.1, the presence of his legal heirs was necessary. He then submitted that the trial Court was not justified in dismissing the suit against the legal heirs on the ground that the plaintiff had not filed any application for issuance of suit summons. According to him after the legal heirs were brought on record the Court ought to have issued summons without requiring the plaintiff to make an application in that regard. He referred to the provisions of Order XII Rule 4, Order I Rule 10(4) and Order V Rule 1 of the Code of Civil Procedure, 1908 (for short, the Code) in that regard. According to him the trial Court ought to have allowed the application in question to enable an adjudication on merits. The impugned order therefore was liable to be set aside.