C.R. No. 334 of 2010 -1- ***** IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH C.R. No. 334 of 2010 (O&M) Date of Decision : 02.08.2010 Gurnam Singh & others .......... Petitioners Versus Vipin Kumar & others ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. M.S. Bedi, Sr. Advocate with Ms. Gauri Bedi, Advocate for the petitioners. Mr. S.P. Chahar, Advocate for the respondents. **** VINOD K. SHARMA, J. (ORAL) The petitioners have invoked the supervisory jurisdiction of this Court under Article 227 of the Constitution of India to challenge the order dated 17.8.2009, passed by the learned Civil Judge (Sr.Div.), Gurdaspur, vide which application moved by the the petitioners for being impleaded as legal heirs of the deceased / plaintiff was ordered to be dismissed, and as a consequence thereof the suit filed by Smt. Balwinder Kaur was also dismissed. Late Smt. Balwinder kaur filed a suit for declaration claiming herself to be owner in possession of land measuring 1K- 10M comprised in Khewat No. 279/ 263, Khatauni No. 450, Rect. No. 26, Killa No. 3/2(0-16), 4/2(0-14) situated in the revenue estate of C.R. No. 334 of 2010 -2- ***** village Chawla, H.B. No. 625, Tehsil and District Gurdaspur, as per the jamabandi for the year 1999-2000. The suit property was said to have been purchased by her vide sale deed dated 6.10.2005. The defendants No. 1 to 3 were said to have no right, title or interest in the land, and consequential relief of permanent injunction was also prayed for. Smt. Balwinder Kaur died on 13.7.2009. Earlier to her death the evidence of the plaintiff had commenced, and she availed number of opportunities to lead evidence, but failed to conclude her evidence. The learned Court fixed the case for 17.8.2009 by way of last opportunity to lead evidence. The petitioners appeared in the court, on the said date, and moved an application for being impleaded as legal heir of Smt. Balwinder Kaur, who died on 13.7.2009. The learned trial Court dismissed the application, which was signed by Gurnam Singh i.e. husband of the deceased / plaintiff, and affidavit in support of application was not filed, no death certificate was placed on record. In the after-noon suit was also dismissed for non-prosecution. The petitioner challenged the impugned order, on the plea, that once Smt. Balwinder Kaur has died, it was necessary to bring on record legal representatives, otherwise suit was to abate at expiry of period as per law. The impugned order can not be sustained in law, as once the application was moved, and there were no other legal representative, the Court while dismissing the application of Gurnam C.R. No. 334 of 2010 -3- ***** Singh being not one of the legal heirs should have brought on record Gurjit Singh and Bakshsish Singh sons of Smt. Balwinder Kaur as her legal representatives. The impugned order passed by the learned trial Court, dismissing the application of bring on record legal representatives is set aside, and the application moved by the petitioner is allowed to the extent that Gurjit Singh and Bakshsish Singh sons of Smt. Balwinder Kaur, are ordered to be brought on record as legal representatives of deceased Balwinder Kaur. The second order under challenge is the order vide which the learned Court has dismissed the suit for non-prosecution, as no evidence was led by the plaintiff, and nobody appeared in Court after lunch. In view of the dismissal of the application moved by the petitioner, nobody could have appeared in the Court to lead evidence, as Smt. Balwinder Kaur plaintiff was dead. The learned trial Court by ignoring the death of Balwinder kaur dismissed the suit for non-prosecution. This order passed by the learned trial Court, is patently wrong. In case the learned Court was of the view, that in spite of last opportunity no evidence was led by the plaintiff, and that the application moved by the legal heirs was not in accordance with law, the suit could not have been dismissed for non-prosecution. The learned trial Court should have waited for expiring of statutory period to dismiss the suit as having abated. The impugned order passed by the learned trial Court C.R. No. 334 of 2010 -4- ***** dismissing the suit for non-prosecution suffers from patent error, which can not be sustained in law. In view of the findings, referred to above, this revision petition is allowed, the impugned orders are set aside. The petitioners No. 2 & 3, are ordered to be brought on record as legal representatives, of Smt. Balwinder Kaur. The learned trial Court further is directed to give one opportunity to the legal representatives of Smt. Balwinder Kaur to lead remaining evidence of the petitioner, by fixing the date for the said purpose. The parties through their counsel are directed to appear before the learned trial Court on 10.9.2010. 02.08.2010 (VINOD K. SHARMA) 'sp' JUDGE