NARAINDAS VAISHNAV Vs. NAGAR PALIKA MANDAL, JAISALMER

JUDGEMENT

(1.) Appellant-plaintiffs have preferred this appeal under Order 43 Rule 1(k) CPC to challenge order dt. 1st of November, 2017 passed by Addl. District Judge, Jaisalmer (for short, 'learned lower Court'). By the order impugned, learned lower Court rejected application of the appellants under Order 22 Rule 3 and 9 read with Sec. 151 CPC in Civil Appeal Decree No. 09/2016 (11/2010), which entailed rejection of the appeal itself.

(2.) The facts, in brief, are that Late Shri Naraindas, whose legal heirs are appellants herein, filed a suit for injunction against respondents pertaining to land situated in Khasra No. 209 measuring 3 bighas and 10 biswas at Jaisalmer. It is prayed in the suit that defendants be restrained from making any encroachment over the land in question and further not to alienate the same in any manner. The suit was filed through power of attorney holder of Late Shri Naraindas, Satyanarayan, his son, who is appellant No. 1/4 in the instant appeal. Along with the suit, an application under Order 39 Rule 1 and 2 CPC for temporary injunction was also filed. Although during during pendency of the suit, temporary injunction remained in operation but finally the suit was dismissed by the learned trial Court. Feeling aggrieved by the same, appellant No. 1/4, in the capacity of power of attorney holder of the original plaintiff, Naraindas, preferred an appeal before the learned lower appellate Court. During pendency of the appeal, original plaintiff/appellant expired on 13th of April 2013. The factum of death of Naraindas was brought to the notice of the learned lower appellate Court as late as on 27th of March, 2017 by filing an application under Order 22 Rule 3 and 9 read with Sec. 151 CPC. In the application, a prayer was made to condone the delay, setting aside abatement and to substitute all the legal heirs of Naraindas as appellants. The learned trial Court, after hearing the arguments of the rival parties and taking into account inordinate delay of four years, which remained unexplained, dismissed the application and that eventually led to rejection of the appeal itself.

(3.) I have heard learned counsel for the parties and perused the impugned order.