SOSAR DEVI Vs. HARZI

JUDGEMENT

(1.) THE present appeal has been filed by the appellant -plaintiff under Order XLIII Rule 1(k) of CPC challenging the order dt. 14.12.11 passed by the Addl. District Judge (Fast Track), Tonk (hereinafter referred to as 'the trial Court') in Civil Suit No. 65/05, whereby the trial Court has dismissed the application of the appellant under Order XXII Rule 4 and 9 of CPC. The appellant -plaintiff has filed the suit seeking specific performance of the agreement dt. 23.07.2001 allegedly executed by the original defendant No. 1 Harzi in respect to the suit land. During the pendency of the suit, the defendant Harzi expired on 18.03.2005. According to the appellant, the appellant came to know about the said fact when the learned counsel for the respondent informed the trial Court on 23.09.2011 that the defendant had died. The appellant thereafter moved two applications; one under Order XXII Rule 4 and the other under Order XXII Rule 9 of CPC. The trial Court after issuing notices to the legal representatives of the respondent, dismissed both the applications. Being aggrieved by the same the present appeal has been filed.

(2.) IT has been sought to be submitted by the learned counsel Mr. Praveen Jain for the appellant that the appellant was not aware about the death of respondent No. 1 and that he made the applications on the very day, when the learned counsel for the respondents informed the Court about the death of the respondents and, therefore, the appellant had made the applications without any delay.

(3.) HAVING regard to the submissions made by the learned counsels for the parties, it appears that the appellant had not filed the application under Sec. 5 of the Limitation Act on the ground that he had filed the applications on the day when he came to know about the death of the respondent -defendant and, therefore, there was no delay in filing the application. Be that as it may, since the sole respondent has expired, his heirs are required to be brought on record in the interest of justice, subject to payment of cost of Rs. 5,000/ - by the appellant -plaintiff to be paid to the respondents. In that view of the matter, without expressing any opinion on the merits of the case, the impugned order dt. 14.12.11 passed by the trial Court deserves to be set aside and is accordingly set aside. The legal representatives of the sole respondent are permitted to be taken on record. It also appears that one of the legal representative of the sole respondent Smt. Motyadevi has also expired. The appellant is, therefore, directed to do the needful in the suit. The trial Court is directed to decide the appeal on merits and in accordance with law. The appeal stands allowed accordingly.