1 S.B. Civil Misc. Appeal No.1437/2004 Narbada Shanker vs. Rajrana Himmat Singh & Ors. S.B. Civil Misc. Appeal No.1437/2004 Narbada Shanker. vs. Rajrana Himmat Singh & Ors. Date : 14.11.2008 HON'BLE MR. PRAKASH TATIA, J. Mr.SL Jain, for the appellant. Mr.R Chauhan, for the respondents. - - - - - Heard learned counsel for the parties. The appellant is aggrieved against the impugned order dated 9.12.2003 passed by the Civil Judge (SD), Badi Sadri by which the appellant's applications under Order 22 Rule 9 and Order 22 Rule 4 CPC were dismissed and the suit against one of the defendant Gopal Kanwar was dismissed as abated inspite of the fact that her husband Himmat Singh was already party defendant in the suit. According to learned counsel for the appellant, the plaintiff filed the suit before the trial court seeking injunction against the defendants which was refused by the trial court and that order of refusal of injunction was challenged by the plaintiff by 2 S.B. Civil Misc. Appeal No.1437/2004 Narbada Shanker vs. Rajrana Himmat Singh & Ors. preferring appeal. The record of the civil original suit was summoned in the Court of appeal where the legal representatives of Gopal Kanwar were taken on record. Since the record of the suit was before the first appellate court, therefore, it appears that the advocate did not choose to file application for bringing legal representatives of Gopal Kanwar in the trial court. Be it as it may be, even after dismissal of the suit as abated against the defendant no.2 Gopal Kanwar, suit continued against her husband defendant no.1 Himmat Singh. Himmat Singh died subsequently and since the suit was not dismissed in toto, therefore, application was submitted for taking the legal representatives of Himmat Singh, who are the legal representatives of Gopal Kanwar also. Said application was allowed and the legal representatives of defendant no.1 came on record who are also the legal representatives of the respondent no.2. In view of the above reason, it is clear that Gopal Kanwar's death could not have abated the suit as her husband was already party and subsequent to that, all legal representatives of Gopal Kanwar have been impleaded as party though as legal representatives of her husband Himmat Singh. In view of the facts mentioned above, it is clear that Gopal Kanwar's legal 3 S.B. Civil Misc. Appeal No.1437/2004 Narbada Shanker vs. Rajrana Himmat Singh & Ors. representatives were taken on record in misc. Proceedings – appeal and civil original suit's file was lying in the appellate court and husband of deceased Gopal Kanwar was already party in the suit and subsequently, he also died and his legal representatives, who are legal representatives of Gopal Kanwar, were also taken on record, therefore, the order of abatement dated 9.12.2003 cannot be sustained and hence, is set aside. The legal representatives of Himmat Singh taken on record shall also be the legal representatives of Gopal Kanwar. The abatement also stands set aside. The record of the trial court be sent to the trial court forthwith and the trial court is requested to decide the suit expeditiously. Consequently, this appeal is allowed. (PRAKASH TATIA), J. S.Phophaliya