RAM KISHUN OJHA Vs. RAM DULARI KUER

JUDGEMENT

(1.) THIS Rule must be made absolute THIS Court made an order on 14 th August 1936 staying the proceedings, and, in spite of that, the Judge in the Court below disposed of the matter on compromise, the compromise being the payment of full rent and damages and costs by the defendant who had been substituted in place of the original defendant. THIS proceeding is very irregular and I take a very serious view of the matter. When this Court orders proceedings to be stayed, they are to be stayed, and no order is to be made in the matter by the Court below, much less an order disposing of the whole suit. A chalan had been applied for, it appears, in the early part of August but according to the order-sheet of the Judge this was not received until 18 August 1936 at least four days after the order of Mohamad Noor, J. staying the proceedings. And it is clear also from Order No. 12 dated 15 August that the Judge was aware of the stay order even on that date. He was quite clearly wrong in not going into the matter as to who was the proper person to be substituted for the deceased defendant. THIS should have been done by reason of Order 22, Rule 5, Civil P.C., and it was not sufficient for the Judge to act as he did by merely substituting one petitioner (who applied for substitution) in preference to another. That order could be made only after inquiry having been entered into, the result of which would have acted as res judicata. The Judge will go into the question of substitution and the suit will be tried in the presence of that person whom the Judge holds as the proper legal representative of the deceased. It is perhaps unnecessary to state that, in the event of the Judge deciding that the daughter is the proper person, the matter as it at present stands will remain. THIS order is without prejudice to any compromise which may be entered into. The Rule is made absolute with costs: hearing fee two gold mohurs.