LAWS(MPH)-2006-1-49

RAGHUWAR PRASAD Vs. RAMADEVI

Decided On January 25, 2006
RAGHUWAR PRASAD Appellant
V/S
RAMADEVI. Respondents

JUDGEMENT

(1.) INVOKING appellate jurisdiction of this Court under Order 43 Rule 1 (k) of the Code of Civil Procedure (hereinafter referred to as the "code"), appellant/plaintiff has filed this appeal calling in question the correctness, legality, validity and propriety of the order dated 12-10-1998 passed by the First Addl. District Judge, Sagar in C. S. No. 36-A/96, whereby the application of the appellant under Order 22 Rule 9 of the Code has been dismissed.

(2.) FACTS leading to filing of this appeal are that; plaintiff filed a suit against the defendants/respondents for declaration of his title on the ground of adverse possession. On 26-9-91, Shri Roop Singh Yadav, Advocate filed his power on behalf of defendant Siyarani (now dead ). The case proceeded exparte against Siyarani. No written statement was filed by her. On 31-11-98 plaintiff Raghuwar Prasad was examined during trial. During his cross-examination, he expressed his ignorance about the whereabouts of Siyarani and also as to whether she is alive or dead. The power of attorney holder of defendant No. 3 Sudha Devi informed the Court that Siyarani had died two years before. Thereupon plaintiff sought time from the Court to bring the L. Rs. of Siyarani on record. The Trial Court stopped the examination of plaintiff and granted time to bring the L. Rs, of Siyarani on record.

(3.) ONLY two days thereafter, plaintiff on 15-1-98 filed an application under Order 22 Rule 4 of the Code. Reply to the application was filed by defendant Nos. 1 to 3 on 24-5-98 stating therein that Siyarani died on 22-7-94. The fact of this death was in the knowledge of the plaintiff because messages regarding death of Siyarani and her last rites were sent to the plaintiff also but the plaintiff did not care to bring the L. Rs. of Siyarani on record, therefore, the suit has abated.