MUNNA KHAN Vs. KAMLA BAI

JUDGEMENT

(1.) THIS revision -petition under section 115 of the CPC is directed against the order dated 29.7.1998 passed by the Ilnd Additional District Judge. Mandsaur. in Misc. Appeal No. 1/98 whereby the application of respondents Nos. 1 and 2 under order 22 Rule 3 CPC was allowed.

(2.) THE facts of the case are that Bhuwan (since deceased) filed civil suit against the petitioner -defendant about the disputed property. He filed an application under Order 39 Rule 1 and 2 CPC for issuance of temporary injunction against the petitioner. This application was dismissed by the trial Court. The plaintiff filed Misc. Appeal No. 1/98. During the pendency of this appeal Bhuwan died.

(3.) SHRI V.K. Jain, LC for the petitioner, submitted that he had no objection about Kamlabai, the widow of deceased plaintiff, being brought on record. However, he submitted that the learned ADJ ought to have directed the Trial Court to make enquiry under Order 22 Rule 5 CPC and thereafter should have passed order about substitution of the names of the legal representatives of the deceased. He, therefore, prays that the impugned order be set -aside and the Trial Court be directed to make enquiry on the application filed by the respondents Nos. 1 and 2 under Order 22 Rule 3 CPC and thereafter pass appropriate order. Shri Jain further submitted that the respondent No. 2 Hemraj did not obtain probate of the will, therefore, he cannot be brought on record. On the other hand, Shri Manana, LC for respondents Nos. 1 and 2, submitted that respondent No. 2 Hemraj is resident of Madhya Pradesh and the disputed property is also situated in Madhya Pradesh, therefore, there was no need for obtaining probate of the will and in absence of probate the respondent could maintain his application.