CW-7585/07-LRs of late Smt. Ramjot Vs. Shjri Ganga Shanker & Ors. Judgment dt.17.9.09 1/2 S.B. CIVIL WRIT PETITION NO.7585/2007 LRs of late Smt. Ramjot Vs. Shjri Ganga Shanker & Ors. Date of order : 17th September, 2009 PRESENT HON'BLE DR. JUSTICE VINEET KOTHARI Mr. H.R. Soni for the petitioner. Mr. M.L. Chhangani for the petitioner. ------- 1. This writ petition is directed against the order dated 28.7.2007 of the learned trial court whereby the application filed by the petitioners under Order 22 Rule 3 C.P.C. was rejected by the learned trial court. 2. The learned counsel for the petitioner submits that the arguments on the application under Order 22 Rule 3 C.P.C. were heard by the learned trial court on 11.7.2007 and the order was scheduled to be pronounced on 19.7.2007, though the order impugned is dated 28.7.2007. In the meanwhile, on 16.7.2007, the respondents appear to have filed written arguments in which it was objected by the respondents that since the applicants were only executors of the Will in question, therefore, upon the death of Ramjot, the so called executor, her LRs could not be taken on record under Section 22 Rule 3 C.P.C. whereas the learned counsel for the petitioner applicants submits that no such objection was taken by the respondents in the reply to the application filed on 11.7.2007 by the respondents, a copy CW-7585/07-LRs of late Smt. Ramjot Vs. Shjri Ganga Shanker & Ors. Judgment dt.17.9.09 2/2 of which is placed on record as Annex.6 with the writ petition. He, therefore, submits that since the copy of the written arguments, filed after argument on the application was concluded, was not supplied to the opposite counsel on 16.7.2007 and the same were considered by the learned trial court and in fact the impugned order is based on the contention raised in such written arguments, therefore, the same has caused serious prejudice to the petitioner and the impugned order deserves to be set aside on this ground alone. 3. Learned counsel for the respondents fairly does not object to the remand of the case to the learned trial court. 4. In view of the above, this writ petition is allowed and the impugned order dated 28.7.2007 is set aside and the matter is remanded back to the learned trial court with a direction to decide the application under Order 22 Rule 3 C.P.C. afresh in accordance with law. [ DR. VINEET KOTHARI ], J. item No.3 babulal/