KAILESH NARAIN MAHAVAR Vs. SONA BAI

JUDGEMENT

(1.) This civil miscellaneous appeal has been filed against the order dated 27-1-2011 passed by the Additional District Judge (Fast Track) Dausa dismissing the appellant-plaintiff's (hereinafter 'the plaintiff') application under Section 5 of the Limitation Act seeking condonation of delay in moving an application under Order 22 Rule 4 CPC for bringing on record legal representatives of defendant No.2 Kalu.

(2.) The facts of the case are that the plaintiff filed a suit in the year 2008 for specific performance of the agreement dated 24-2-2003 as also for declaration as void the relinquishment deed dated 17-5-2003 executed by defendant No.1 Sona bai in favour of defendants No.2 to 11 as also for setting aside the consequent mutation in pursuance thereof. It was stated that the defendant No.1 Sona Bai entered into an agreement on 24-2-2003 with the plaintiff in respect of her 1/18th undivided share in the agricultural land detailed in the suit. But had subsequently executed the relinquishment deed dated 17-5-2003 in favour of the defendants No.2 to 11 to defeat the plaintiff's rights. Based on the relinquishment deed dated 17-5-2003 mutation was opened on 5-7-2003. The plaintiff also averred as to his readiness and willingness to fulfill and discharge his obligation under the agreement dated 24-2-2003 at all times but alleged that the defendant Sona Bai had shown no interest in discharging her obligations under the agreement dated 24-2-2003. Hence the suit for specific performance.

(3.) It appears that during the pendency of the suit, the defendant Kalu died on 19-11-2008. The information with regard to this fact was supplied to counsel for the plaintiff before the trial court on 17-12-2008. The matter was adjourned to 25-3-2009 and thereafter to 15-7-2009. However no steps for bringing on record the legal representatives of defendant No.2 Kalu, a beneficiary of the relinquish deed, challenged before the trial court, were taken by the plaintiff. In view of the failure of the plaintiff in impleading the legal representatives of the defendant No.2 Kalu in the suit, the defendant No.3 Kalyan moved an application on 5-10-2009 before the trial court stating that in view of failure of the plaintiff in impleading the legal representatives of the defendant No.2 Kalu within 90 days of his death on 19-11-2008 despite the information to his counsel to that effect on 17-12-2008, the suit be dismissed having abated. Nothing was done by the plaintiff either on the information on 17-12-2008 or on filing of the application on 5-10-2009.