CRP 5/2011 BEFORE HON’BLE MR JUSTICE T.NK SINGH Heard Mr.S.Kataki, learned counsel for the petitioner. This revision petition is directed against the judgment and orde r of the learned single Judge dated 10.12.2010 wherein and whereunder (i) petiti on No.46/2010 filed by the plaintiff (respondent) under Section 65(f) of the Ind ian Evidence Act, 1872 for allowing to exhibit certified copies of the objection s filed by late Naren Kalita, late Amar Kalita and late Haridas Kalita in connec tion with ULC case No.406/76, 403/76 and 407/76 and also certified copy of writt en statement filed by the defendants in T.S.No.191/07 as Exhibits 1, 1-A, 1-AA a nd Ext 5 respectively had been allowed and (ii) the petition filed by the presen t petitioners/defendants praying for issuing summons to the LRs of respondent No .2 who died during pendency of the suit had been rejected. It is not required to delve deep into the factual matrix for the order proposing to pass in the present revision. It is admitted fact that the p laintiff No.2 died during pendency of the T.S.No.227/07 and the application for substitution of LRs of plaintiff No.2, was filed by the plaintiff No.1. It is the case of the petitioner/defendant that since the applic ation for substitution of LRs of plaintiff No.2 was filed by plaintiff No.1 and not by the LRs of plaintiff No.2, notice should have been served to the LRs of p laintiff No.2. The learned Trial Court in the impugned judgment and order dated 10.12.2010 held that the plaintiff being dominus litis set the law in motion an d court cannot direct the plaintiff to continue with the proceeding. However, in the present case, the LRs of plaintiff No.2 have not yet expressed their desire to continue the suit. In case the LRs of plaintiff No.2 do not want to proceed with the T.S.No.227/07, different process has to be taken. In case the said T.S. No.227/07 is proceeded without giving any notice to the LRs of the plaintiff No. 2, it would not b clear to the Court as to whether the LRs of the plaintiff is i nterested to continue toe T.S.No.22 of 2007 or they do not want to press further proceedings of T.S.No.22 of 2007. In order to avoid, such situation in the give n case where the application for substitution of LRs of plaintiff No.2 was not f iled by the LRs themselves, the learned Munsiff should have given notice to the LRs. This being the situation, the portion of the impugned order date d 10.12.2010 for rejecting the application filed by the present petitioner/defen dant for issuing notice to LRs of respondent No.2 is required to be interfered w ith. The part of the impugned order dated 10.12.2010 allowing the res pondent/plaintiff to exhibit the certified copies of the documents mentioned her einabove without finally deciding the question of admissibility of those documen ts; leaving the matter to be decided at the final stage, is bad in law, accordin g to Mr.Kataki, learned counsel for the petitioner. In support of his contention, he relied heavily on the decision of the Apex Court in Shalimar Chemical Works Limited Vs Surendra Oil and Dal Mil ls (Refineries) & Ors : (2010) 8 SCC 423 and strenuously contends that the Trial Court would not have marked the documents as Exhibits before deciding admissibi lity of those documents. Para 15 of the SCC in Shalimar Chemical Works Limited ( supra) read as follows: 15. On a careful consideration of the whole matter, we feel that serious mis takes were committed in the case at all stages. The trial court should not have marked as exhibits the Xerox copies of the certificates of registration of tra de mark in face of the objection raised by the defendants. It should have declin ed to take them in record as evidence and left the plaintiff to support its case by whatever means it proposed rather than leaving the issue of admissibility of those copies open and hanging, by marking them as exhibits subject to objection of proof and admissibility. The appellant, therefore, had a legitimate grievanc e in appeal about the way the trial proceeded. If, the learned Trial Court is directed to re hear the said misc applications filed by the parties for the subjects indicated above according to merit in terms of the observation made by this Court, no irreparable loss shall be caused to the respondent/plaintiff; inasmuch as the respondent/plaintiff wil l have the opportunity of being heard at the time of rehearing of the said misc application. For the foregoing reasons, the impugned order dated 10.12.2010 i s hereby set aside. The learned Munsiff is directed to rehear the said applicati ons filed by the parties for the matter discussed above by giving opportunity of being heard to them keeping in view of the above observation. The revision petition is allowed.