MOTI LAL S/O LATE SHRI BHIMAJI, BY CASTE SARGADA, AGED 45 YEARS, RESIDENT OF BEHIND VISHNU DHARAMSHALA, GAUSHALA ROAD, ABU ROAD, DISTRICT SIROHI Vs. SUDHIR KUMAR, S/O SHRI BHANA RAM, BY CASTE AGRAWAL, RESIDENT OF ABU ROAD, DISTRICT SIROHI

JUDGEMENT

(1.) By way of this writ petition, the petitioners have approached this Court for assailing order dated 26.11.2012 (Annex.9) passed by learned Additional District Judge, Abu Road in Civil Appeal No.11/2008 rejecting the application submitted on behalf of the petitioners under Order 22, Rule 3 (4) Code of Civil Procedure for permitting them to continue the appeal in capacity of the legal heirs of late Smt. Rambha Devi.

(2.) Facts in brief are that the respondent plaintiff Sudhir Kumar filed a suit for eviction and recovery of due rent against Smt. Rambha Devi, petitioners' mother as well as the petitioners in the Court of learned Civil Judge (J.D.), Abu Road. The suit was decreed ex-parte by judgment dated 6.1.2000. Smt. Rambha Devi filed an application under Order 9, Rule 13 Code of Civil Procedure for setting aside ex-parte judgment which was rejected by order dated 20.5.2008. Execution proceedings were initiated by the respondent which are still pending. Being aggrieved by the rejection of her application for setting aside the ex-parte proceedings, Smt. Rambha Devi filed an appeal in the Court of learned Additional District Judge, Abu Road. During pendency of the appeal, Smt. Rambha Devi passed away whereupon the petitioners being her legal heirs filed an application under Order 22, Rule 3 (4) Code of Civil Procedure for being impleaded as party in place of Smt. Rambha Devi and seeking permission to continue with the appeal. Such application was rejected by the learned trial Court vide order dated 26.11.2012 against which the instant writ petition has been preferred.

(3.) Shri Richin Surana learned counsel for the petitioners relying upon the Supreme Court judgments in the cases of K. Rudrappa Vs. Shivappa reported in AIR 2004 SC 4346 and Mithailal Dalsangar Singh & Ors. Vs. Annabai Devram Kini & Ors. reported in WLC (SC)(Civil) 2003(2) 597, urges that the application for bringing the appellant Rambha Devi's legal representatives on record should not have been dismissed on the ground of insignificant delay of ten days. No separate application for setting aside the abatement of appeal is required to be filed in view of the law laid down by the Honourable Supreme Court. He thus urges that the impugned order is grossly bad in the eye of law and also suffers from error apparent on the face of record and thus, should be quashed and set aside.