KAPOOR SINGH Vs. SINDER KAUR

JUDGEMENT

(1.) PLAINTIFF -petitioner has questioned the legality of order dated 12.08.2010, passed by the Additional Civil Judge (Sr., Divn.), Amloh, dismissing his application under Order 9 Rule 4 CPC read with Section 151 CPC, for restoration of the suit against defendant Nos.4, 5, 8 & 22.

(2.) THE facts, relevant for the adjudication of the controversy, are that the plaintiff-petitioner has filed a suit for declaration that he is owner to the extent of 1/9th share in the property left by his father Sardara Singh on the basis of natural succession whereas defendant No.1 Sinder Kaur his sister has propounded a Will in her favour. The suit was filed on 29.09.1999. The evidence has been led by the parties. The plaintiff and contesting defendants have closed the evidence in the year 2005. The plaintiff-petitioner claims that defendant Nos.4, 5, 8 and 22, had not been served as per record. The order was passed to serve the respondents by publication on 17.11.1999 but the Presiding Officer vide order dated 06.08.2007, declined the request of the plaintiff petitioner to summon defendant Nos.4, 5, 8 & 22, holding that it was the responsibility of the plaintiff-petitioner to get the service effected upon the said defendants before leading his evidence. It was held, inter alia, that until and unless Will dated 13.11.1975, is proved, the property will devolve as per natural succession. It was also held that in case the plaintiff was able to prove his case and defendant No.1 failed to prove his Will, defendant Nos.4, 5, 8 & 22, are also going to be benefited, as such, the application for summoning defendant Nos.4, 5, 8 & 22, after six years of filing of the suit was declined. The petitioner had filed a revision petition before this Court which was disposed of vide order dated 09.10.2009, with an observation that there is a specific remedy available to the petitioner to move an application under Order 9 Rule 4 CPC, to show that it there was sufficient reasons for issuing notice to the defendants.

(3.) THE trial Court has dismissed the application on the following grounds: -