Allowed

Dharu Ram Meena @ Dharu v. Kanka Devi

Rajasthan HC5 Oct 2018CW/14003/2018

Case brief

AI extract

What is this about?

The High Court quashed the Trial Court's order substituting Kanka Devi as a legal representative without giving the petitioner an opportunity to reply. The Court allowed the writ petition and directed fresh hearing on the substitution application.

What did the court decide?

Impugned orders dated 01.06.2017 and 01.08.2018 quashed; petitioner allowed liberty to file reply; parties directed to produce evidence.

Dharu Ram Meena @ Dharu Vs Kanka Devi — Civil Procedure and Limitation | Rajasthan HC (2018)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Writ No. 14003/2018

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Dharu Ram Meena @ Dharu S/o Aasha Ram Meena, Aged About 27 Years, By Caste Meena, Resident Of Bhawrani, Tehsil Aawat, District Jalore, Raj, At Present Resident Of Rupaliya, Tehsil Hamirgarh, District Bhilwara, Raj.

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----Petitioner

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Versus

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Kanka Devi D/o Chunni Lal W/o Shri Nena Ram Meena, Aged About 51 Years, Resident Of Outside Of Surajpol, Meenon Ka Bas, Shanti Nagar Colony, Jalore, Raj.

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Sub-Registrar, Registration Office, Hameergarh District Bhilwara, Raj.

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State Of Rajasthan, Through Tehsildar Hameergarh, District Bhilwara, Raj.

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----Respondents

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For Petitioner(s) : Mr. Kishan Lal Bansal For Respondent(s) : Mr. Rajender Singh Charan

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JUSTICE DINESH MEHTA

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Judgment

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05/10/2018

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The present writ petition is directed against the order dated 01.06.2017 as well as order dated 01.08.2018 passed by learned Additional Senior Civil Judge No.2, Bhilwara, whereby the respondent No.1 – Kanka Devi has been substituted as legal representative of the original plaintiff – Aasha Ram.

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Briefly stated the facts leading the petitioner to file the present writ petition are that the plaintiff – Aasha Ram had filed a suit for cancellation of sale deed dated 11.07.2016. During the suit proceedings, the original plaintiff – Aasha Ram died, for which Kanka Devi, the respondent No.1 herein filed an application under

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(2 of 3)

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[CW-14003/2018]

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Order XXII Rule 3 of the Code of Civil Procedure, which was granted by the Court on 01.06.2017, in wake of the consent given by the defendant’s (petitioner’s) counsel.

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Subsequent thereto, he realised that his counsel had given a consent being oblivious of the fact that said Kanka Devi – applicant was not a daughter of the plaintiff. Such being the situation, the present petitioner filed a review application dated 17.08.2017 before the Trial Court inter alia contending that newly substituted plaintiff – Kanka Devi is not the daughter of plaintiff – Aasha Ram and as such her substitution be recalled.

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Said application dated 17.08.2017 filed by the petitioner came to be rejected by the Trial Court, inter alia observing that the same does not fall within the scope of the power to review as enshrined under Order XLVII Rule 1 of the Code of Civil Procedure.

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Mr. Bansal, learned counsel for the petitioner contended that the learned Court below has erred in rejecting petitioner’s application under Order XLVII Rule 1 of the Code of Civil Procedure, inasmuch as there was an apparent error in order of the Trial Court may be as a result of bonafide lapse on the part of his lawyer. Respondent No.1 has been substituted as legal representatives, despite the fact that she was not daughter of the plaintiff, he contended.

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Mr. Charan, learned counsel appearing for the respondents supported the order under challenge. He however maintained that if the order impugned passed by the Trial Court is set aside, and the petitioner – defendant is given a liberty to file reply to the respondents’ application under Order XXII Rule 3 of the Code of

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(3 of 3)

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[CW-14003/2018]

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Civil Procedure, the respondent may also be given liberty to lead evidence/file documents..

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In this view of the matter, it is clear that relevant facts could not be brought to the notice of the Trial Court and the Trial Court has decided the application under Order XXII Rule 3 of the Code of Civil Procedure essentially on the basis of consent given by the defendant’s counsel. This Court is of the firm view that the petitioner deserves an opportunity of filing reply to the application for substitution, filed by the respondent No.1 – Kanka Devi.

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Hence, the impugned order dated 01.06.2017 as well as order dated 01.08.2018 are quashed and set aside. The petitioner may file a reply to the application under Order XXII Rule 3 of the Code of Civil Procedure, filed by the respondents on or before the next date, which is reported on 24.10.2018. Both the parties shall have rights to produce their evidence and documents in this regard.

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Needless to observe that the Trial Court shall decide the subject application under Order XXII Rule 3 of the Code of Civil Procedure afresh, in accordance with law.

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Writ petition stands allowed.

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(DINESH MEHTA),J

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Anurag/2

Dharu Ram Meena @ Dharu v. Kanka Devi

Case brief

What is this about?

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Dharu Ram Meena @ Dharu v. Kanka Devi

Case brief

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