IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Revision No. 3357 of 2004 (O&M)
Date of decision: 28th August, 2009
Safeda alias Safed Khan
... Petitioner
Versus
Mrs. Muharbi and others
... Respondents
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Present: Mr. Sudhir Aggarwal, Advocate for the petitioner
Mr. Lokesh Sinhal, Advocate for the respondents.
KANWALJIT SINGH AHLUWALIA, J. (ORAL)
Safeda alias Safed Khan sought decree for permanent
injunction, restraining Mrs. Muharbi, widow of Nasuriddin not to alienate
the suit land mentioned in the first para of the suit, by way of sale,
mortgage, lease, gift or by an appointment of heir or in any other manner.
Case of the petitioner is that on filing of the suit, ad-interim
injunction, as prayed for, was granted in his favour on 8th December, 1998.
It will be pertinent to mention that the suit was instituted on 10th October,
1998. Aggrieved against the grant of ad-interim injunction, the defendant
had filed an appeal. The appeal was decided on 27th May, 2000 and the
appellate authority had directed the parties to cause appearance before
the trial Court on 6th June, 2000. It is stated that due to bonafide mistake,
the date was wrongly noted as 7th June, 2000. On 7th June, 2000, when
plaintiff caused his appearance, he learnt that the suit has been dismissed
in default on 6th June, 2000. On the application filed, the suit was restored
on 9th June, 2000. During the interregnum period of three days,
Mrs.Muharbi had adopted Salim Ahmed son of Nasru Khan, as her son.
This factum of adoption was sought to be introduced in the plaint by
Civil Revision No. 3357 of 2004 (O&M) 2
seeking an amendment. The prayer for amendment had been declined by
the trial Court.
The trial Court has taken too technical view to state that there
was no stay order operating on 8th June, 2000, as the suit was dismissed in
default on 6th June, 2000. Till 8th June, 2000, the suit of the plaintiff was not
restored, therefore, a valid adoption took place on 7th June, 2000 and the
trial Court has thus, not allowed the amendment.
Mr. Lokesh Sinhal appearing for the respondent No.2 states
that during the pendency of this revision petition, Mrs.Muharbi has expired
and no cause of action survives now and the suit is liable to be dismissed.
I have given my thoughtful consideration to the rival
submissions made by counsel for the parties. In the present case, in case
the amendment is allowed, it will bring into light the fact, which had
occurred due to dismissal of the suit in default. After restoration of the suit,
same shall be revived and anything which has happened during the
pendency of the present revision petition, is required to be brought to the
notice of the Court, so that the journey to find out the truth is completed.
Mr. Lokesh Sinhal, while filing the written statement on behalf
of the defendant, shall be at liberty to raise all the objections, which have
been raised before this Court.
With these observations, present petition is disposed of.
[KANWALJIT SINGH AHLUWALIA]
JUDGE
August 28, 2009
rps