HARI SHANKAR SINGH Vs. TUNUWA AHIR

JUDGEMENT

(1.) Learned counsel for the petitioner submits that this petition has been filed for restoration of W.P. (C) No. 4701 of 2016 which was dismissed for default on 15/6/2019 on account of non-compliance of the order dtd. 16/5/2019 by which the petitioner was directed to take steps for service of notice upon respondent Nos. 6 and 7 on their present and correct address and to take necessary steps for substitution of the names of the legal heirs of the deceased respondents.

(2.) The learned counsel further submits that the notices were issued to respondent Nos. 1 to 8 under registered cover as well as ordinary process vide order dtd. 27/9/2019 in this case and when the case was listed on 17/1/2020 under the heading for Orders, it has been mentioned that the opposite party Nos. 1,2,3 and 5 have expired. The learned counsel submits that the opposite party No. 1 died issueless in November, 2011, opposite party No. 2 died in August, 2009 leaving behind the legal heirs mentioned in paragraph 3 of this petition and the legal heirs of deceased opposite party No. 2 namely Manbodh Ahir also died in the month of March, 2015 leaving behind the legal heirs mentioned in para 4. Legal heirs of deceased opposite party No. 2 died issueless in June, 2017. The learned counsel submits that in I.A. No. 705 of 2020 the aforesaid details have been mentioned which has been filed for substitution of the surviving legal heirs of deceased opposite party Nos. 1,2,3 and 5.

(3.) Learned counsel for the petitioner has relied upon a judgment passed by the Hon'ble Supreme Court in the case of Pankajbhai Ramesbhai Zalvadia versus Jethabhai Kalabhai Zalavadiya (deceased) through legal heirs reported in (2017) 9 SCC 700 to submit that in case the defendant dies prior to institution of the suit, a petition under Order 1 Rule 10 for addition of party is maintainable. In the instant case the legal heirs of the persons who had died prior to filing of the writ petition are necessary parties for proper adjudication of the case and therefore the present petition is maintainable.