CIVIL REVISION NO.5098 OF 2005 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: MAY 16 , 2008 Devinder Joshi and another .....Petitioners VERSUS DAV College Management and Society Trust, New Delhi and others. ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. B. R. Mahajan, Advocate, for the petitioners. Mr. Sudeep Mahajan, Advocate, for respondent Nos.4 and 5. **** RANJIT SINGH, J. Respondent Nos.1 to 6 have filed a civil suit under Section 92 CPC for removal of respondent Nos.7 to 19, who are defendant Nos.1 to 15 in the suit) as trustees of charitable Trust known as “Brijlal Kapoor and Sons”. Further prayer is that the property of the Trust be invested in plaintiff-respondent Nos.1 to 6 with a direction to respondent Nos.7 to 19 to deliver the possession CIVIL REVISION NO.5098 OF 2005 :{ 2 }: of the Trust properties to the Trustees to be appointed. The petitioners filed an application under Order 22 Rule 4 read with Order 1 Rule 10 CPC for being impleaded or joined as defendants in this case in the place of Chowdhary Baldev Krishan (defendant No.6) and Sh.Nand Lal Nair (defendant No.10). The ground is that Nand Lal Nair has died and in his place petitioner- applicant, Davinder Joshi, was appointed as Trustee of the said Trust. Similarly, petitioner-applicant Rohit Suri claims to be appointed as Trustee in place of Chowdhary Baldev Krishan who has also died. Petitioners claim that they are very much interested in the Trust and defending the suit in their independent right as well as having been appointed as Trustees on the deaths of these two trustees, who were the defendants in the suit. Notice of the application was served on the plaintiffs (respondent Nos.1 to 6). The said respondents would plead that this application is highly belated and moved with malafide to delay the decision in the suit. It is pointed out that this application is filed when the final date for recording the evidence of the defendants is fixed. The trial Court, however, dismissed the application by finding that Rohit Suri, petitioner, was appointed as Trustee on 3.2.1991 and Davinder Joshi on 18.8.1986 whereas the present application has been filed on 18.8.2005. Ofcourse, the petitioners would say that they were not aware of this suit and have moved this application as and when they learnt about it. This line of reasoning, however, did not appeal to the Civil Judge (Senior Division) and he, thus, dismissed their application. That is how, they have now filed the present revision petition to impugn the said order. CIVIL REVISION NO.5098 OF 2005 :{ 3 }: The counsel representing the contesting respondent Nos.1 to 6 would adopt the same line of reasoning and plead that this application is malafide and filed just to delay the proceedings. The counsel points out that the suit is in progress for the last 14 years and the petitioners stand substituted as Trustees since 1991-1996 respectively, yet they chose to file this application in the year 2005. Counsel for the petitioners, on the other hand, would meet this argument by saying that the substitution of the petitioners in place of two of the defendants would not lead to any delay in disposal of the case as they do not claim any additional right than what was available to defendant Nos.6 and 10 as they wish to join the proceedings from the stage these are existing at present. The counsel would categorically submit that they would not claim any additional right then the one which would be available to them as if defendant Nos.6 and 10 are originally contesting the suit. They would lead evidence only in case the evidence is being so led on behalf of the defendants and not otherwise. Mr. B.R.Mahajan, representing the petitioner, points out with valid justification that in view of the amended provisions of Order 22, no abatement is to take place on party's death if right to sue survives. He would then refer to Order 22 Rule 4 to say that where one of the two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone or a sole defendant or a sole surviving defendant dies and the right to sue survives, the Court on an application made in that behalf shall call the legal representatives of the deceased defendant to be made a party and shall proceed with the suit. The counsel would, thus, point CIVIL REVISION NO.5098 OF 2005 :{ 4 }: out distinction between Order 22 Rule 4 and Order 1 Rule 10 CPC. Defendant Nos.6 and 10 having died and right to sue still surviving, the prayer of the petitioners was required to be considered by the Court in the light of the provisions of Order 22 Rule 4 (1) CPC. In fact, the plaintiffs could be expected to file application for substituting the legal representatives of defendant Nos.6 and 10, who have died. As per Order 22 Rule 4 (3) CPC, where no application is made under sub-rule (1) within the time limited by law, the suit is to abate against the deceased defendant. The only ground advanced to justify the impugned order by respondent Nos.1 to 6 is that it would lead to delay. Perhaps they are not realizing the effect of their prayer in view of the provisions of Order 22 Rule 4 CPC. Since the petitioners are not seeking any extra rights or indulgence after becoming party and want to defend the suit from the stage where the same is pending upon their substitution, the allegation that this is only aimed to delay the proceedings obviously can not be accepted. I see justification in the prayer made by the petitioners. The impugned order, as such, can not be sustained. The same is set-aside. The petitioners would stand substituted in place of defendant Nos.6 and 10 in the suit and would be permitted to defend the same from the stage where it is pending as on date and would not get any extra right or opportunity to defend the suit. Mr.Sudeep Mahajan, appearing for the respondent Nos.1 to 6, prayed that some direction could be given for concluding the trial within some time bound period as it is pending since long. There is some justification in this prayer made by the counsel. The Trial Court would see the feasibility of concluding this trial within six months from the date of CIVIL REVISION NO.5098 OF 2005 :{ 5 }: receipt of copy of this order. The revision petition is accordingly disposed of. May 16 ,2008 ( RANJIT SINGH ) khurmi JUDGE