RAMDAYAL Vs. NATHULAL

JUDGEMENT

(1.) THIS civil revision petition arises out of an order passed by the Additional District Judge, Kekri (Ajmer) in civil appeal No. 31/92 allowing application of Gopal Lal (Opposite Party No. 9/3), under Order 1 Rule 10 (2) CPC holding him as necessary party to the appeal as one of legal representatives of deceased Chandra Prakash, being adopted son.

(2.) ADMITTED facts, briefly stated are that Civil Suit No. 20/81 Suraj Devi vs. Ramdayal & Others instituted for eviction on the grounds of default and bonafide need was decreed by the trial court against the present petitioners (tenants/ defendants) by judgment and decree dated 7. 2. 81, against which an appeal was preferred by Ramdayal (tenant ). During the pendency of the appeal, one of the respondents (plaintiff) namely Chandra Prakash had died on 11. 9. 1986 and as such on the application of the appellants (present petitioners), his widow & daughter were brought as legal representatives of deceased (respondent) Chandra Prakash on record under the order dated 5. 3. 1990 of the appellate court.

(3.) IN Radha Krishna vs. Shyam Sunder (supra), Radha Krishna claiming himself adopted son of late Rai Bahadur B. B. Mohapatra whose first wife was Luximani (plaintiff in partition suit) against Shyam Sunder and others who were sons of late Rai Bahadur and step sons of the plaintiff), had applied for being substituted in place of Laximani (plaintiff) on her death, on the basis of a registered deed of adoption executed by her and his natural father. However his application was dismissed by the trial court and the suit itself was dismissed being abated on the application of the defendants (step sons of the plaintiff), even without considering as to whether petitioner was adopted by Luximani. Hence in these circumstances, the High Court of Orissa set aside the order of the trial court rejecting petitioner's application and dismissing the suit as abated and held that the trial court failed to exercise its jurisdiction vested in it by not enquiring into and determining under Order 22 Rule 5 CPC as to whether the petitioner was the legal representative of deceased plaintiff.