KEDAR GURJAR Vs. RAM NATH & ORS.

JUDGEMENT

(1.) Heard learned counsel for the parties.

(2.) The plaintiff-petitioner has preferred this Civil revision petition under Sec. 115 of the Code of Civil Procedure against the order dated 04.08.2009 passed by the Civil Judge (Junior Division), Niwai, (District Tonk) in Civil Suit No.9/2007 whereby the learned Court below has dismissed the application under Order 22 Rule 4 Code of Civil Procedure filed by the petitioner and as a consequence thereof abated the suit to the extent of deceased defendant Shri Ram Nath.

(3.) Brief relevant facts for the disposal of the revision petition are that the plaintiff-petitioner filed a suit for specific performance and permanent injunction against the defendant Shri Ram Nath and the non-petitioners. It is an admitted fact that after the service of summons the defendant Shri Ram Nath appeared before the Court below and alongwith other defendants filed joint written statement and during the pendency of the suit he died on 13.08.2007. The petitioner filed an application on 06.12.2007 with prayer that the remaining defendants may be directed to provide the particulars of the legal representatives of the deceased defendant. It is an admitted fact that application remained pending and no order or direction was passed by the Court below upon the same. Subsequently, the petitioner filed an application under Order 22 Rule 4 Code of Civil Procedure on 16.04.2009 with the averment that the name of the legal representatives of the deceased defendant have come into the knowledge of the petitioner recently when mutation order was passed by the Tehsildar and in place of the deceased names of his legal representatives have been ordered to be entered in revenue record. It was prayed by the petitioner that in place of the deceased defendant name of his legal representatives may be substituted. Alongwith the application, an application under Sec. 5 of the Limitation Act was also filed but no separate and independent application under Rule 9ORDER22 of Code of Civil Procedure was filed and no prayer was also made in the application filed under Order 22 Rule 4 Code of Civil Procedure to the effect that abatement automatically caused to the extent of deceased defendant Ram Nath may be set aside. Reply to the application was not filed by the non-petitioners. The learned trial Court vide impugned order dismissed the application filed by the petitioner and as a consequence thereof, it was also ordered that suit to the extent of deceased defendant stands abated. It was also order that the suit will continue against the remaining defendants. Feeling aggrieved, the plaintiff-petitioner is before this Court by way of this revision petition.