IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 3485 of 2009 Date of Decision : November 13, 2009 Om Parkash and others ....Petitioners Versus Pirthi and another .....Respondents CORAM : HON’BLE MR. JUSTICE T.P.S. MANN Present : Mr. Vijay Jindal, Advocate for the petitioners. Mr. R.N. Lohan, Advocate for respondent No.1. None for respondent No.2. T.P.S. MANN, J. Respondent No.2-Mange filed a suit against respondent No.1-Pirthi and one Harphool, who was arrayed as a proforma defendant. Relief of declaration was sought by plaintiff-Mange that he alongwith defendant-Harph was owner in possession of the suit land and contesting defendant-Pirthi had no right, title or interest in the same. However, defendant-Harphool was already dead at the time of filing of the suit. His legal heirs were neither impleaded nor brought on record at any stage during the pendency of the suit. The suit was dismissed by the trial Court on 18.2.2008. While filing the first appeal against the judgment and decree passed by the trial Court dismissing the suit, the plaintiff impleaded proforma defendant-Harphool as respondent No.2 through the present petitioners Civil Revision No. 3485 of 2009 -2- as his legal heirs. When notice of the appeal was received by the petitioners, being legal representatives of proforma defendant/respondent No.2, they filed an application before the learned lower appellate Court for permission to file the written statement and to contest the suit on merits. The application was, however, declined by Additional District Judge, Jind on 24.12.2008. The said order has been impugned by the petitioners by filing the present revision under Article 227 of the Constitution of India. Learned counsel for the petitioners submitted that though Harphool was arrayed as proforma defendant in the suit yet he was dead at the time of its filing. This fact had come to the knowledge of the trial Court in view of the report on the summons sent to Harphool and, thereafter, incorporated in the order dated 28.5.2005. Despite the same, the petitioners were neither impleaded nor brought on record as legal heirs of deceased Harphool. The entire proceedings in the suit were done at their back. They have now been impleaded for the first time in appeal and duly summoned. They were not heard in the entire proceedings in the suit. They had no opportunity to cross-examine the witnesses examined by both the parties and to produce evidence. Therefore, the impugned order be set aside and the application filed by the petitioners before the learned lower appellate Court for permission to file the written statement and to contest the suit on merits be accepted. It is not in dispute that plaintiff-Mange and proforma Civil Revision No. 3485 of 2009 -3- defendant-Harphool were real brothers. While filing the suit, plaintiff- Mange sought declaration that he alongwith proforma defendant- Harphool was owner in possession of the suit property and contesting defendant Pirthi had no right, title or interest in the same. Therefore, the interest of the plaintiff and proforma defendant was common. As noticed by the learned lower appellate Court in para 5 of the impugned order, no relief was claimed by the plaintiff against proforma defendant- Harphool. Moreover, one of the co-owners could file a declaratory suit against the third party. Even otherwise, the plaintiff and proforma defendant No.2, being real brothers, it cannot be said that the petitioners, who were legal heirs of proforma defendant No.2 had no knowledge about the proceedings. They could have themselves come forward before the trial Court and got themselves impleaded as legal heirs of deceased defendant-Harphool but they chose not to do so. It is apparent that the application in question has been filed by the petitioners being legal heirs of proforma defendant-Harphool only in collusion with the plaintiff so as to prolong the proceedings of the case. In view of the above, no case for interference in the impugned order is made out. The revision is, therefore, dismissed. ( T.P.S. MANN ) November 13, 2009 JUDGE satish