MAHESH CHAND Vs. SHYAM LAL AND OTHERS

JUDGEMENT

(1.) This revision petition has been filed against the order of the learned Additional Civil Judge No.1, Jodhpur passed in Civil Suit No. 123/76 rejecting the petitioner's application moved under order 47 rule 1 read with section 151, C.P.C. The. facts of the case giving rise to this revision petition may be summarised thus.

(2.) The plaintiffs Shyamlal (non-petitioner no.1), Smt. Basti (non-petitioner no.2) and late Kesulal filed suit No. 123 ofl976 for redemption of mortgagee. During the pendency of the suit the plaintiff Kesulal died on Dec. 6,1984. An application was moved under Order 22 rule 3, C.P.C. for bringing his mother Smt. Basti Bai and his widow Smt. Jabbu Bai on record. While this application was pending, the petitioner Mahesh Chandra moved an application under Order 22 rule 3, C.P.C. stating that he was adopted by the deceased Kesulal during his life time as his son and a will has also been left in his favour in respect of the suit property, he is the sole heir and legal representative of Kesulal, the plaintiffs no. 2 and 3 want to deprive him of his properties, they did not even disclose him about the pendency of the suit and he came to know about it as late as on Oct. 1, 1985 and praying that his name be substituted in place of the deceased Kesulal. The petitioner filed his affidavit only in support of his application. Neither the adoption deed nor the will set up him was filed. Reply was also filed by the plaintiffs no. 2 and 3 seriously opposing the application and stating that the petitioner Mahesh Chandra was never adopted by Late Kesulal, no consent for adoption of any child was ever given by his widow Smt. Jabbu Bai, no will has been left in favour of the petitioner in respect of any property, all the facts alleged in the application arc totally false and concocted and the application has been moved with a view to delay the disposal of the suit. In support of this reply, affidavits of plaintiff Shyamlal, Kesulal's widow Jabbu Bai and Kesulal's nephew Surendra Kumar were filed. After hearing the applicant Mahesh Chandra and the par- lies, the learned trial court rejected the application of the petitioner Mahesh Chand by its order dated Sept. 25,1987 holding that the petitioner Mahesh Chand has utterly failed to show even prima facie that he was adopted by late Kesulal and a will in respect of the suit property has been left in his favour.

(3.) Thereafter, the petitioner moved an application under Order 47 rule 1 read with Sec. 151, C.C.P. for reviewing the aforesaid order dated Sept. 25,1987 on the ground that the case was fixed for deciding the procedure to be adopted for disposing of the applications moved under Order 22 rule 3, C.P.C. and the trial court decided the petitioner's application only without deciding the procedure and without deciding the other applications. After hearing the parties and the petitioner Mahesh Chand, the trial court dismissed this application by its order dated May 19, 1989 which has been challenged in this revision petition.