BAINI PARSHAD UDYOG Vs. NIRMAL GUPTA

JUDGEMENT

(1.) THIS petition filed under Section 115 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') prays for setting aside order dated 7.1.2004 passed by the Civil Judge (Jr. Division), Jagadhari holding that Nirmal Gupta one of the legal representatives of Sham Lal has been rightly impleaded as plaintiff after the death of her husband Sham Lal Gupta who was the original plaintiff. The basis of the aforementioned view taken by the Civil Judge is that all the legal heirs are not required to be brought on record in view of the affidavit (Annexure A-1) sworn by all the legal heirs of deceased Sham Lal Gupta stating that they have no objection if Nirmal Gupta is substituted as legal representative of Sham Lal.

(2.) IT is appropriate to mention that Sham Lal the original plaintiff filed Civil Suit No. 135 of 16.4.1998 under Order XXXVII of the Code for recovery of Rs. 30,000/- as principal amount and Rs. 12,000/- as interest on the basis of pronote dated 17.4.1995. Sham Lal Gupta died on 7.2.2003 and thereafter an application was moved by Nirmal Gupta for substituting her as plaintiff in the suit. The same was objected to by the defendant-petitioner by stating that either there should be succession certificate or all the legal heirs should be brought on record. The aforementioned objections have been over-ruled by the Civil Judge by observing as under :-

(3.) HAVING heard the learned counsel, I am of the considered view that this petition is devoid of any merit and is thus liable to be dismissed because all the legal heirs have given up their claim in favour of Nirmal Gupta in so far as the suit filed by Sham Lal Gupta is concerned. The affidavit given by all the legal representatives is Annexure A-1. There is no challenge to the affidavit that the same is false or has been brought on record by any misrepresentation or fraud. In the absence of any such allegation, the affidavit has to be accepted prima facie as correct. I am further of the view that in the instant cases the Civil Judge adjudicated upon the question and on the basis of affidavit Annexure A-1 has concluded that Nirmal Gupta is entitled to be impleaded as legal representative of her husband as all the other legal heirs have given that right to her by affidavit Annexure A-1.