DHARAM VIR Vs. WAZIR

JUDGEMENT

(1.) This judgment will dispose of the present appeal as well as Regular Second Appeal No. 1057 of 1967 "Wazir v. Dharam Vir and others" both of which arise out of the same judgment of the learned Additional District Judge, Gurgaon, dated August 5, 1967. By means of the said judgment, the learned District Judge had in fact disposed of two connected appeals which arose from the decision of the Subordinate Judge First Class, Palwal, dated November 25, 1966, in a suit for possession by way of pre-emption filed by Arjan etc. (respondents in this Court).

(2.) The basic facts are not controversial. Manohar Lal sold the land in dispute to Dharam Vir and Rajbir (appellants in Regular Second Appeal No. 1340 of 1967) on April 15, 1965, for a consideration of Rs. 25,000/-. Arjan etc., the tenants on the said land asserted their right to pre-empt the sale. The usual contest followed with the various pleas which are available to the vendees in such matters. The trial Court framed the following issues in the case :-

(3.) A preliminary objection was put forward on behalf of the respondents in Regular Second Appeal No. 1340 of 1967, to the effect that two of the respondents, namely, Ram Chandi respondent No. 4 and Khacheru respondent No. 5 had died in January, 1977, and September, 1976 respectively and their legal representatives not having been impleaded as parties in the appeal, the same had abated and should consequently be dismissed. An application under Order XXII, Rule 4, Code of Civil Procedure, was indeed filed at the stage of arguments on behalf of the appellants praying that the legal representatives of the said deceased-respondents be brought on the record. The application was accompanied by a separate petition under Section 5 of the Limitation Act for condonation of delay in the matter. The applications were allowed subject to just exceptions. The matter has been reconsidered now. Though the appellants (in Regular Second Appeal No. 1340 of 1967) are not able to build up justification for not moving the required application for a considerably long time, the law as stood at the time when the two respondents had died, did not make it obligatory upon the appellants to bring the legal representatives on the record, as the Rules and Orders of this Court which were incorporated in the relevant provision of the Code of Civil Procedure, cast the duty of bringing on record the legal representatives, upon the heirs of the deceased and not on the person who is dominus litis. Further more, in view of the fact that the plaintiff-pre-emptors held specified portions of the land in dispute under independent tenancies, the question of abatement as a whole does not arise. The preliminary objection raised in this behalf is, therefore, ruled out. The merits of the two appeals may not be examined.