ALIMUDDIN Vs. SHRI SHYAM SUNDER TAPADIA AND OTHERS

JUDGEMENT

(1.) The present writ petition has been filed by the petitioner under Articles 226 & 227 of the Constitution of India, challenging the order dated 29.05.2013 passed by the Additional District & Sessions Judge No.1, Ajmer (hereinafter referred to as "the trial court") in Civil Suit No.68/2008, whereby the trial court has dismissed the application of the petitioner-plaintiff for bringing on record the legal heirs of the respondent No.2 under Order 22, Rule 4 of CPC.

(2.) In the instant case, it appears that the petitioner-plaintiff has filed the suit seeking cancellation of the sale deed allegedly executed by the deceased respondent No.2 Shri Gopal Tolani in favour of the respondent No.3, on the ground that the said respondent No.2 had sold out the suit property on the basis of power of attorney allegedly executed by the petitioner-plaintiff in his favour. According to the plaintiff, the respondent No.1 was the property dealer, with whom an agreement was entered into by the plaintiff, and the respondent No.1 misusing the signature of the petitioner, obtained on the blank papers, had forged the power of attorney in favour of the respondent No.2 as if it was executed by the petitioner, and that the said respondent No.2 in turn executed the sale deed in favour of the respondent No.3, which has been sought to be cancelled in the suit. During the pendency of the said suit, the said respondent No.2 expired, and therefore, the petitioner submitted an application for bringing on record his legal heirs under Order 22, Rule 4 alongwith the application seeking condonation of delay, and for setting aside the abatement qua the respondent No.2, if any. The said application has been dismissed by the trial court vide the impugned order.

(3.) It has been sought to be submitted by the learned counsel Mr. Praveen Sharma for the petitioner that the respondent No.2-defendant No.2 Gopal Tolani was impleaded as the party defendant in his personal capacity, and on his death, his legal heirs were required to be brought on record. However, the learned counsel for the respondents have jointly submitted that the respondent No.2-defendant No.2 having been impleaded as party defendant in the capacity of being power of attorney holder, the said power of attorney had come to an end after his death, and hence the legal heirs could not be substituted in his place.