Lrs Smt. Ramjot vs Ganga Shanker & Ors on 17 September, 2009

CW-7585/07-LRs of late Smt. Ramjot Vs. Shjri Ganga Shanker & Ors.   Judgment dt.17.9.09

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             S.B. CIVIL WRIT PETITION NO.7585/2007
        LRs of late Smt. Ramjot Vs. Shjri Ganga Shanker & Ors.

Date of order                           :                     17th September, 2009

                                      PRESENT

               HON'BLE DR. JUSTICE VINEET KOTHARI

Mr. H.R. Soni for the petitioner.
Mr. M.L. Chhangani for the petitioner.

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1.              This writ petition is directed against the order dated

28.7.2007 of the learned trial court whereby the application filed by

the petitioners under Order 22 Rule 3 C.P.C. was rejected by the

learned trial court.



2.              The learned counsel for the petitioner submits that the

arguments on the application under Order 22 Rule 3 C.P.C. were

heard by the learned trial court on 11.7.2007 and the order was

scheduled to be pronounced on 19.7.2007, though the order impugned

is dated 28.7.2007. In the meanwhile, on 16.7.2007, the respondents

appear to have filed written arguments in which it was objected by the

respondents that since the applicants were only executors of the Will

in question, therefore, upon the death of Ramjot, the so called

executor, her LRs could not be taken on record under Section 22 Rule

3 C.P.C. whereas the learned counsel for the petitioner applicants

submits that no such objection was taken by the respondents in the

reply to the application filed on 11.7.2007 by the respondents, a copy
 CW-7585/07-LRs of late Smt. Ramjot Vs. Shjri Ganga Shanker & Ors.   Judgment dt.17.9.09

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of which is placed on record as Annex.6 with the writ petition. He,

therefore, submits that since the copy of the written arguments, filed

after argument on the application was concluded, was not supplied to

the opposite counsel on 16.7.2007 and the same were considered by

the learned trial court and in fact the impugned order is based on the

contention raised in such written arguments, therefore, the same has

caused serious prejudice to the petitioner and the impugned order

deserves to be set aside on this ground alone.



3.              Learned counsel for the respondents fairly does not

object to the remand of the case to the learned trial court.



4.              In view of the above, this writ petition is allowed and the

impugned order dated 28.7.2007 is set aside and the matter is

remanded back to the learned trial court with a direction to decide the

application under Order 22 Rule 3 C.P.C. afresh in accordance with

law.

                                                  [ DR. VINEET KOTHARI ], J.

item No.3
babulal/