MEWAR KALAL NYATI SANGH Vs. JAIVI

JUDGEMENT

(1.) This second appeal is directed against the judgment and decree passed by the learned Additional District Judge No. 1, Jodhpur in Civil Appeal No. 13/95 whereby the learned Additional District Judge No. 1, dismissed the appeal and confirmed the decree dated 23rd December, 1994 passed by the learned Additional Civil Judge (Jr. Division) No. 1, Jodhpur in Civil Suit No. 92/93.

(2.) The appellant filed the Civil Suit No. 892/93 against the defendant-Ismail Khan for abatement on recovery of arrears of rent. During the pendency of the suit, the defendant-Ismail Khan expired on 5-2-94. The information about the death of the defendant-Ismail Khan was given to the trial Court by the learned Counsel for Ismail Khan on 3rd March, 1994 when the case was taken up for hearing. On 3-3-94, the plaintiff-appellant's counsel was present and he came to know about the death of the defendant-Ismail Khan. The application for bringing on record the legal representatives of the defendant-Ismail Khan and setting aside the abatement was filed in the trial Court on 25th May, 1994 after a delay of about 20 days. In his application, the plaintiff-appellant stated that he had come to know about the death of the defendant 15 days ago. The learned trial Court after hearing the counsel for the parties, dismissed the application filed by the plaintiff-appellant under Order 22, Rule 9 and Order 22, Rule 4 of the Civil Procedure Code by order dated 23rd December, 1994 on the ground that the delay in filing the applications was not sufficiently explained.

(3.) The plaintiff-appellant preferred an appeal against the order of abatement passed by the trial Court on 23rd December, 1994. The appeal was heard and finally disposed of by the Additional District Judge No. 1, Jodhpur by the judgment dated 13th December 1995. The learned Additional District Judge No. 1, Jodhpur dismissed the appeal and upheld the order dated 23rd December, 1994 passed by the trial Court. Feeling aggrieved by the judgment and decree passed by the Courts below, the plaintiff has filed this second appeal. The appeal was admitted on 26th August, 1996 for the disposal of the solitary question, whether in the facts and circumstances of the case, the Court should have allowed the application for setting aside abatement. Hence, the only question to be decided in this appeal is whether the Courts below should have allowed the applications filed by the plaintiff-appellant under Order 22, Rule 9 and Order 22, Rule 4 of the Civil Procedure Code.