BALWINDER SINGH MALHI Vs. RAJINDER SINGH BATH

JUDGEMENT

(1.) The present revision petition has been filed challenging the orders dtd. 5/9/2023 (Annexures P-9 and P-10) passed by the lower Appellate Court whereby the application filed for impleading the legal representative of the plaintiff-respondent has been allowed and by the second order the operation of the judgment and decree dtd. 30/3/2019 has been stayed subject to the defendant-petitioners depositing the arrears of mesne profits within one month and also depositing the future mesne profits for every month by the 7th of the following month.

(2.) Learned counsel for the defendant-petitioners would contend that the application filed by Mohinder Kaur Bath for being impleaded as a legal heir was time barred and should have been rejected. He cited Jatav Panchayat Committee and Anr. vs. VIIth Additional District Judge, Etawah and Ors. [AIR 2000 All. 253] in support of his contention. It is also contended that initially all the legal heirs of the plaintiff - Rajinder Singh Bath i.e. his wife, son and daughter had filed an application dtd. 23/7/2019 for impleading them as legal heirs and subsequently a fresh application dtd. 4/1/2022 was filed only by his wife, Mohinder Kaur Bath, for being impleaded as a legal heir of Rajinder Singh Bath. According to counsel since there was a dispute regarding the legal heirs to be impleaded, the application has wrongly been allowed by the lower Appellate Court. The second impugned order regarding mesne profits is challenged by contending that the stay application filed with the appeal was not listed on 5/9/2023 and therefore the lower Appellate Court erred in passing an order thereon. It is further contended that the amount assessed is in excess and the market rate of rent is much lower.

(3.) Per contra, learned counsel for the plaintiff-respondent has submitted that by being impleaded as a legal heir of the original plaintiff Rajinder Singh Bath, the wife is permitted to pursue the litigation. It is further submitted that in any event the defendant-petitioners only want to delay the proceedings and that they have no concern with the impleadment of the legal heirs of the original plaintiff - Rajinder Singh Bath. It is argued that with the amendment to the CPC, there is no limitation for bringing on record the legal heirs. Reliance has been placed on Ram Sarup and Ors. vs. Dilbagh Singh [2004(1) RCR Civil 94], Banta Singh vs. Khajan Singh [2001(2) RCR Civil 326], Pradeep Kumar vs. Vijay Kumar Sharma [2009(48) RCR Civil 358]. It is contended that since the defendant-petitioners are wanting to remain in possession of the suit property after the passing of the judgement and decree against them by the Trial Court, they are bound to pay the mesne profits for use and occupation. He argued that since a money decree had been passed against the defendant-petitioners, the interest of the plaintiff-respondent has to be suitably safeguarded before staying their eviction. Reliance has been placed on M/s Martin and Harris Private Limited and Anr. vs. Rajendra Mehta and Ors. [2022 (2) RCR (Rent) 109], Sihor Nagar Palika Bureau vs. Bhabhlubhai Virabhai and Co. [2005(2) RCR Civil 672] and Congress Committee (I) (Rural) and Anr. vs. S. Brahmgyan Singh Majithia (since deceased) through his LRs and Ors. [2022(2) RCR Rent 212].