BRIJ MOHAN AGARWAL Vs. RAM GOPAL

JUDGEMENT

(1.) THIS Revision has been preferred to this Court against the order dated 27.1.1994 passed by the learned Additional District Judge No. 7, Jaipur City, Jaipur, in CMA No. 163 of 1991, by which the appellate court rejected petitioner's application under Order XXII Rule 9 of the CPC read with Section 5 of the Limitation Act.

(2.) THE facts giving rise to the Revision Petition, briefly stated are that a suit for mandatary injunction was filed against the petitioner -defendant by the plaintiff -respondent, wherein the plaintiff had sought a direction from the trial court against the petitioner to restrain him from constructing a room over the first floor of the disputed property situated at Jaipur.

(3.) DURING the course of hearing, it has been brought to my notice that during the pendency of proceedings before the trial court, respondent -plaintiff died on 20.9.92 and the application under Order XXII Rule 9 CPC read with Section 5 of the Limitation Act, for substitution of legal representatives of the deceased, was filed by the petitioner, as referred to above, and the trial court after giving due hearing to both the parties, allowed the said application, whereby the legal representatives of the deceased respondent, who are party to this Revision, were brought on the record. In this regard I am of the considered opinion that once the trial court having brought the legal representatives of the deceased respondent on the record, it was not open for the appellate court to have taken a contrary view of the matter since technically the appeal preferred by the petitioner against the interim order could not abate for this reason of delay in substituting the legal representatives of the deceased respondent on the record. 1 am further of the opinion that the legal representatives having thus been brought on the record, would automatically and ipso facto continue to remain on the record and the appellate court should have taken this vital fact into consideration that the suit could not have abated for the mere reason of their non -impleadment before the trial court.