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S.B. Civil Misc. Appeal No.1437/2004
Narbada Shanker vs. Rajrana Himmat Singh & Ors.
S.B. Civil Misc. Appeal No.1437/2004
Narbada Shanker. vs. Rajrana Himmat Singh & Ors.
Date : 14.11.2008
HON'BLE MR. PRAKASH TATIA, J.
Mr.SL Jain, for the appellant.
Mr.R Chauhan, for the respondents.
– – – – –
Heard learned counsel for the parties.
The appellant is aggrieved against the impugned
order dated 9.12.2003 passed by the Civil Judge (SD),
Badi Sadri by which the appellant’s applications under
Order 22 Rule 9 and Order 22 Rule 4 CPC were dismissed
and the suit against one of the defendant Gopal Kanwar
was dismissed as abated inspite of the fact that her
husband Himmat Singh was already party defendant in the
suit.
According to learned counsel for the appellant,
the plaintiff filed the suit before the trial court
seeking injunction against the defendants which was
refused by the trial court and that order of refusal of
injunction was challenged by the plaintiff by
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S.B. Civil Misc. Appeal No.1437/2004
Narbada Shanker vs. Rajrana Himmat Singh & Ors.
preferring appeal. The record of the civil original
suit was summoned in the Court of appeal where the
legal representatives of Gopal Kanwar were taken on
record. Since the record of the suit was before the
first appellate court, therefore, it appears that the
advocate did not choose to file application for
bringing legal representatives of Gopal Kanwar in the
trial court. Be it as it may be, even after dismissal
of the suit as abated against the defendant no.2 Gopal
Kanwar, suit continued against her husband defendant
no.1 Himmat Singh. Himmat Singh died subsequently and
since the suit was not dismissed in toto, therefore,
application was submitted for taking the legal
representatives of Himmat Singh, who are the legal
representatives of Gopal Kanwar also. Said application
was allowed and the legal representatives of defendant
no.1 came on record who are also the legal
representatives of the respondent no.2.
In view of the above reason, it is clear that
Gopal Kanwar’s death could not have abated the suit as
her husband was already party and subsequent to that,
all legal representatives of Gopal Kanwar have been
impleaded as party though as legal representatives of
her husband Himmat Singh. In view of the facts
mentioned above, it is clear that Gopal Kanwar’s legal
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S.B. Civil Misc. Appeal No.1437/2004
Narbada Shanker vs. Rajrana Himmat Singh & Ors.
representatives were taken on record in misc.
Proceedings – appeal and civil original suit’s file was
lying in the appellate court and husband of deceased
Gopal Kanwar was already party in the suit and
subsequently, he also died and his legal
representatives, who are legal representatives of Gopal
Kanwar, were also taken on record, therefore, the order
of abatement dated 9.12.2003 cannot be sustained and
hence, is set aside. The legal representatives of
Himmat Singh taken on record shall also be the legal
representatives of Gopal Kanwar. The abatement also
stands set aside.
The record of the trial court be sent to the trial
court forthwith and the trial court is requested to
decide the suit expeditiously.
Consequently, this appeal is allowed.
(PRAKASH TATIA), J.
S.Phophaliya