RAMU @ RAMLAL Vs. DAULAT MOTIYANI & ORS

JUDGEMENT

(1.) This revision petition has been filed by the defendant No.2-petitioner (hereinafter 'the defendant No.2') against the order dated 26.04.2013, passed by the Appellate Rent Control Tribunal, Jaipur allowing the application under Order 22 Rule 4 read with Section 151 CPC filed by the plaintiff-respondent (hereinafter 'the plaintiff') before it seeking to substitute the legal heirs of deceased-defendant No.1 Mool Chand. The parties described above are as per their description before the Rent Tribunal.

(2.) Counsel for the defendant No.2 has submitted that the defendant No.1 Mool Chand died on 19.08.2008 in the course of proceedings before the Rent Tribunal and in terms of Article 120 of Schedule appended to the Limitation Act, 1963, the eviction petition abated on the failure of the plaintiff to implead Mool Chand's Legal heirs within a period of 90 days of his death. It has been submitted that in this view of the facts obtaining on record, the petition before the Rent Control Tribunal ought to have taken to have abated, no matter the subsequent formal dismissal of the eviction suit by the Rent Tribunal on 28.04.2011. He submitted that the appeal thereagainst by the plaintiff before the Appellate Rent Tribunal was in the circumstances not maintainable and ought to have been otherwise treated as abated. The grievance of the defendant No.1, submits his counsel, is that far from dismissing the appeal as having abated, the Appellate Rent Tribunal has allowed a belated application for substitution of the deceased-defendant No.1 Mool Chand by his legal heirs. He prays that the substitution under Order 22 Rule 4 CPC read with Section 151 CPC by the impugned order dated 26.04.2013 by the Appellate Rent Tribunal be set aside and the appeal before the Appellate Rent Tribunal be held to have abated.

(3.) Having heard the counsel for the defendant, having perused the order dated 26.04.2013, passed by the Appellate Rent Control Tribunal and from the facts on record I find no force in the present revision petition. The plaintiff Daulat Motiyani filed an eviction suit impleading Mool Chand and Ramu @ Ramlal as defendants therein. That eviction suit was dismissed by the Rent Control Tribunal vide its judgment dated 28.04.2011. It however appears that during the pendency of the eviction petition before the Rent Control Tribunal, Mool Chand expired on 19.08.2008. Information thereof however does not appear to have been given to the plaintiff before the Rent Control Tribunal even upto 28.04.2011 when the plaintiff's eviction suit was dismissed. Thereupon the plaintiff filed an appeal before the Appellate Rent Control Tribunal aggrieved of the dismissal of his eviction suit. On notices being issued to the non-appellants in the plaintiff's appeal, the report of the process server indicated on the file of the appellate court in proceedings drawn on or about 14.10.2011 that when the service was sought to be affected on Mool Chand, he was found to have expired and therefore could not be served. Based on knowledge this report of 14.10.2011 acquired by the plaintiff, the application for substitution of the deceased Mool Chand by his LRs i.e. 1/1 to 1/7 was moved with reference to Order 22 Rule 4 read with Section 151 CPC before the Appellate Rent Tribunal. No reply to the said application was filed in spite of service of notice. The Appellate Rent Control Tribunal taking into account the facts of the case allowed the said application holding that the application for substitution of the LRs of deceased Mool Chand had been filed within 90 days of the knowledge of his death pursuant to the office report of 14.10.2011. While allowing the application filed under Order 22 Rule 4 read with section 151 CPC, the Appellate Rent Control Tribunal dismissed an application filed by the non-appellants for abatement of the appeal.