MANJU Vs. MORARI LAL KIRAR

JUDGEMENT

(1.) This petition under Article 227 of the Constitution of India has been filed against the order dated 09/08/2018 passed by First Civil Judge, Class-II, Gwalior in Civil Suit No.71-A/2015 by which the application filed by the petitioner under Order 22 Rule 10 CPC along with the application under Section 5 of the Indian Limitation Act has been dismissed.

(2.) The necessary facts for disposal of the present petition in short are that the respondents No.3 to 7 as well as Jaswant Singh had filed a suit for declaration of title and permanent injunction. Jaswant Singh expired on 12/02/2017 and accordingly, an application under Order 22 Rule 3 of CPC was filed on 27/06/2017 for bringing his legal representatives on record and an application under Section 5 of the Indian Limitation Act was filed in support of the application under Order 22 Rule 3 of CPC. The said applications were decided by the Trial Court by order dated 09/01/2018 on the ground that since the application for bringing the Legal Representatives of the deceased plaintiff No. 6 Jaswant Singh was not filed with the period of limitation, therefore, by force of law, the suit filed by Jaswant Singh has already stood abated and accordingly, both the application were rejected, with the liberty to the petitioners to file an application under Order 22 Rule 9 of CPC. It appears that thereafter, the petitioners filed an application under Order 22 Rule 10 of CPC along with an application under Section 5 of the Indian Limitation Act. The Trial Court by the impugned order dated 09/08/2018 has rejected the application filed under Section 5 of the Indian Limitation Act and has consequently rejected the application filed under Order 22 Rule 10 of CPC after considering the same under Order 22 Rule 9 of CPC.

(3.) Challenging the order passed by the Trial Court, it is submitted by the counsel for the petitioners that the Trial Court should have adopted a lenient view while dealing with the applications and thus, it has committed a material illegality by rejecting the application filed under Section 5 of Limitation Act and consequently, rejecting the application under Order 22 Rule 9 of CPC.