SURINDERJIT KAUR Vs. SUKHDEV SINGH

JUDGEMENT

(1.) The present revision petition has been filed by defendant no. 2 under Article 227 of the Constitution of India challenging the order passed by the Court of Additional Civil Judge (Sr. Divn.), Pehowa dated 13.05.2013 (Annexure P-7) whereby, the application for dismissal of a suit on account of the fact that defendant no. 1-Jagdish Chand had died much prior to the filing of the suit has been dismissed. Vide the same order, the application filed by the plaintiff-respondent has been allowed and the legal representative of defendant no. 1 namely Rajiv Aggarwal has been directed to be impleaded as a party and the case was fixed for awaiting his presence.

(2.) The necessary facts are that the respondent no. 1-plaintiff filed a suit for declaration and relief of possession on 19.02.2008 against the petitioner and one Jagdish Chand who was arrayed as defendant no. 1. The suit was based on the ground that there was no exchange deed with defendant no. 1 and a decree dated 19.07.1985 passed in Civil Suit No. 863 of 1985 titled as Jagdish Chand vs. Sukhdev Singh was void as he had never appeared in the said suit. The resultant mutation was also challenged and the subsequent transfer of the land in favour of the present petitioner by alleging that the plaintiff was still in cultivating possession.

(3.) An application dated 21.03.2011 was filed by the present petitioner on the ground that defendant no. 1-Jagdish Chand had died much prior to the filing of the suit. The death certificate showing the date of death as 26.10.1987 was appended alongwith the affidavit of Rajiv Aggarwal, who was his son. The application was contested by the plaintiff/respondent no. 1 that the Court had passed an order for the presence of the legal heirs of the deceased and that the plaintiff was not aware that the said defendant had died. The revenue record also did not mention this fact and the said defendant had left the village 30 years ago and until his son appears in Court, the fact would remain disputed. Thereafter, an application was filed by respondent no. 1 that the legal representatives of Jagdish Chand may be impleaded as defendants and defendant no. 2 be directed to supply the details of the legal representatives. It was pleaded that the ex parte proceedings had earlier been initiated against the defendants and the present petitioner had filed an application for setting aside the ex parte order dated 30.04.2008 and the said order had been set aside on 04.11.2010. In view of the application having been filed earlier notice had been sent to Rajiv Aggarwal and a report had come that he had left the house which had been mentioned in the affidavit. It was mentioned that in the death certificate, the name had been mentioned as J.C. Aggarwal and the complete name had not been mentioned and there was a doubt about his death. The son was not appearing and accordingly, it was pleaded that the legal representatives be impleaded as defendants and proceedings be initiated against them to supply the details.