// 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.8784/2004 Shashi Kanta W/o Shri Arun Kumar Versus Smt. Har Pyari W/o Durga Prasad and Others Date of Order ::: 09.05.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri R.K. Mathur and Shri Ajay Tantiya, Counsel for petitioner Shri Mohd. Isaq Abbas, Advocate, for Shri J.R. Choudhary, Counsel for respondents #### By the Court:- Heard learned counsel for the parties. This writ petition, on behalf of the plaintiff-petitioner, is directed against the impugned order dated 25th September, 2004 passed by the Additional Civil Judge (Jr.Div.) & Judicial Magistrate, 1st Class No.1, Alwar, whereby the application of the petitioner for substitution of legal representatives of deceased defendant No.3 Luhindaram has been dismissed, and the suit against the defendant No.3 Luhindaram has been ordered to be abated and his name was deleted from the array of the defendants. The learned counsel for the petitioner contended that the defendant No.3 Luhindaram died on 2nd March, 2002 and his legal representatives filed an application for substitution of their names, on 15th July, 2002 itself. The plaintiff was not residing in the same village, therefore, she could not get the information about the death of defendant No.3 and when she received an information // 2 // through her lawyer then she moved an application on 20th November, 2003 wherein it was prayed that the legal representatives, as mentioned in the application filed by them on 15th July, 2002, may be allowed to be taken on the record and their names may be substituted. He contended that the trial court committed an illegality in dismissing the application of the petitioner and in deleting the name of the defendant No.3 Luhindaram as suit having abated against him. In support of his contentions, the learned counsel for the petitioner placed reliance on K. Rudrappa v. Shivappa – (2004) 12 SCC 253 and contended that the approach of the trial court was only technical one and, therefore, the impugned order may be set-aside and the application for substitution of legal representatives may be allowed. The learned counsel for the respondents defended the impugned order and prayed for dismissal of the writ petition. I have considered the submissions of learned counsel for both the parties in the light of reasons assigned by the trial court in the impugned order. The defendant No.3 died on 2nd March, 2002 and his legal representatives filed an application for substitution of their names in his place. From the order passed by the trial court, it appears that no order was passed on that application. The trial court has observed in the impugned order that an application dated 15th July, 2002 was filed by legal representatives of deceased defendant No.3 Luhindaram, therefore, he does not find any force in the application filed by the plaintiff for substitution of legal // 3 // representatives of defendant No.3 Luhindaram. The Hon'ble Supreme Court in K. Rudrappa's case (supra) has considered the scope of Order 22 Rule 3 and Section 151 of the CPC, wherein an application under Order 22 Rule 3 CPC was filed after expiry of period of limitation without any separate application under Order 22 Rule 9 CPC and held that such technical objections should not come in doing full and complete justice between the parties. Para No.10 of the judgment of the Hon'ble Supreme Court in K. Rudrappa's case (supra) is reproduced as under:- “10. Having heard learned counsel for the parties, in our opinion, the appeal deserves to be allowed. The case of the appellant before the District Court was that he was not aware of the pendency of the appeal filed by his father against the order passed by the Tehsildar. The father of the appellant died in June 1994 and the appellant came to know of the pendency of appeal somewhere in September 1994 when he received a communication from the advocate engaged by his father. Immediately, therefore, he contacted the said advocate, informed him regarding the death of his father and made an application. In such circumstances, in our opinion, the learned counsel for the appellant is right in submitting that a hypertechnical view ought not to have been taken by the District Court in rejecting the application inter alia observing that no prayer for setting aside abatement of appeal was made and there was also no prayer for condonation of delay. In any case, when separate applications were made, they ought to have been allowed. In our opinion, such technical objections should not come in doing full and complete justice between the parties. In our considered opinion, the High Court ought to have set aside the order passed by the District Court and it ought to have granted the prayer of the appellant for bringing them on record as heirs and legal representatives of deceased Hanumanthappa and by directing the District Court to dispose of the appeal on its own merits. By not doing so, even the High Court has also not acted // 4 // according to law.” In view of the above discussion and judgment of the Hon'ble Supreme Court, I find force in the contention of the learned counsel for the petitioner and the impugned order passed by the trial court cannot be allowed to be sustained. Consequently, the writ petition is allowed. The impugned order passed by the trial court, so far it relates to rejection of application for substitution of legal representatives of deceased defendant No.3 Luhindaram, is set-aside. The application filed by the petitioner is allowed. The legal representatives of deceased defendant No.3 Luhindaram are taken on the record. The trial court may now proceed further in the suit in accordance with the law. Costs is made easy. (Narendra Kumar Jain) J. //Jaiman// IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN // 5 // BENCH AT JAIPUR ORDER IN S.B. Civil Misc. Stay Application No.7609/2004 In S.B. Civil Writ Petition No.8784/2004 Shashi Kanta W/o Shri Arun Kumar Versus Smt. Har Pyari W/o Durga Prasad and Others Date of Order ::: 09.05.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri R.K. Mathur and Shri Ajay Tantiya, Counsel for petitioner Shri Mohd. Isaq Abbas, Advocate, for Shri J.R. Choudhary, Counsel for respondents #### By the Court:- In view of the order passed in the writ petition itself, the stay application also stands disposed of. (Narendra Kumar Jain) J. //Jaiman//