ROSHNI DEVI Vs. RAJA RAM

JUDGEMENT

(1.) This petition has been filed by plaintiff for reviewing judgment dated 30th Sept., 2010, passed in RSA No. 30 of 2000. It is contended that defendant No. 7 Kesari Dass had died when the matter was pending before the learned trial Court in the year 1986. The parties in the judgment are referred to as plaintiff and defendants. The operative part of the judgment dated 30th Sept., 2010, is as follows:-

(2.) The plaintiff has filed the review petition on the ground that, no doubt, the defendant No. 7 has died in the year 1986 when the matter was pending in the trial Court, but an application under Order 22, Rule 4 (4) Civil Procedure Code was allowed by the trial Court on 20th Oct., 1989 and the plaintiff was exempted from bringing on record legal representatives of defendant No. 7. The suit was decreed on 25.08.1992. The defendant No.1 filed an appeal against the judgment, decree dated 25.08.1992. In the appeal, the defendant No.1 took the objection by filing application that the defendant No. 7 had died when the matter was pending before the trial Court and his legal representatives were not brought on record and, therefore, the suit had abated and prayed for acceptance of appeal which was filed before the learned lower Appellate Court. This application was dismissed on 15.11.1997 by the learned Additional District Judge (1), Kangra. The appeal was dismissed by the learned lower Appellate Court on 08.10.1999.

(3.) Thereafter, the defendant No.1 filed second appeal and in the second appeal again the contention was raised that the legal representatives of defendant No. 7 Kesari Dass were not brought on record, the defendant No. 7 had died when the matter was pending in the trial Court. This Court took the view that since Kesari Dass had died when the matter was pending in the trial Court, therefore, the question of abatement will be considered by the trial Court only. It is significant to note here that none of the parties brought to the notice of this Court at that time that an application under Order 22, Rule 4 (4) Civil Procedure Code has already been allowed by the trial Court on 20th Oct., 1989 exempting plaintiff from bringing on record legal representatives of defendant No. 7.