IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 146 of 2011. Decided on: 11.10.2011. ___________________________________________________________ Smt. Chanchalan Devi … Appellant. Versus Sh. Ashok Kumar and others. … Respondents. ___________________________________________________________ Coram: Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 No. For the appellant : Mr. R.K. Gautam, Sr. Advocate with Ms. Archana Dutt, Advocate. For the Respondents : Mr. Ajay Kumar, Advocate. ___________________________________________________________ V.K. Sharma, Judge. RSA No. 146 of 2011 and CMP No. 669 of 2011: On the last date of hearing (7.9.2011), the following order was passed by this Court in this matter: “Though today is last opportunity for the appellant to file reply to the present application, yet another opportunity is granted in the interest of justice. Now be filed within three weeks. List on 11.10.2011.” 2. However, even despite that reply to CMP No. 669 of 2011 moved on behalf of the respondents under Order 41 Rule 3 read with Sections 107 and 151 CPC with a prayer for rejection of the memorandum of appeal and in the alternative for dismissal of the appeal, has not been filed. 3. Heard. 4. The suit out of which the present appeal has arisen was filed by plaintiff, Maya Devi, who died during pendency of the 1 Whether reporters of the local papers may be allowed to see the judgment? No. 2 appeal before the learned First Appellate Court. Accordingly, an application seeking to bring her legal representatives on record was moved stating that she is survived by Ashok Kumar, Kashmiri Devi and Jogindera Devi, the respondents herein, who in turn stated in their reply that deceased Maya Devi had executed a Will in favour of one Pritam Chand, son of Shri Dilwar. Consequently, said Pritam Chand was ordered to be brought on record to represent the estate of deceased Maya Devi as involved in the appeal pending before the learned First Appellate Court. Such orders were passed by that Court on 19.4.2010 which are extracted below for ready reference:- “19.4.2010 Present: Sh. B.D. Chaudhry Adv. Counsel for the appellant. Sh. V.K. Sood Adv. Counsel for the L.Rs. of the respondent. Heard. Maya Devi had died on 3.11.2009. An application for bringing following L.Rs: Ashok Kumar, Kashmiri Devi and Jogindera Devi was moved on 3.11.2009 which is duly supported by an affidavit. As per reply Maya Devi had executed Will in favour of Pritam Chand son of Dilwar son of Ganesh r/o Bhadiara, Tehsil and Distt. Kangra, H.P. The application is within time as such the same is allowed. Maya Devi is allowed to be represented by Pritam Chand. Maya Devi be shown in the head note of the appeal in the following manner:- Maya Devi deceased through Pritam Chand son of Dilwar son of Ganesh r/o Bhadiara, Tehsil and Distt. Kangra, H.P. Now for consideration on application under Order 41 Rule 27 CPC to come up on 9.6.2010. Sd/- (B.L. Soni) ADJ-I Kangra at D/shala.” 5. However, a perusal of the impugned judgment and decree dated 30.11.2010 passed by the learned First Appellate 3 Court would go to show that the said Ashok Kumar, Kashmiri Devi and Jogindera Devi came to be incorporated as respondents being legal representatives of deceased Maya Devi instead of Pritam Chand who in fact was ordered to be impleaded as such. It appears that this mistake occurred due to some ministerial act and is liable to be rectified. However, orders to this effect can be passed only by the learned First Appellate Court in order to set the record straight. Ordered accordingly. 6. In view of the above, the impugned judgment and decree dated 30.11.2010 passed by the learned Additional District Judge (1), Kangra at Dharamshala, H.P. cannot be sustained as the same wrongly depict the respondents as Ashok Kumar, Kashmiri Devi and Jogindera Devi instead of Pritam Chand and the matter is liable to be remitted to the said Court for rectification of this error. Ordered accordingly. The learned First Appellate Court shall proceed to do the needful in accordance with law after issuing notice to said Pritam Chand. The parties represented in this Court are directed to appear before the learned First Appellate Court on 4.11.2011. The requisitioned records be sent back so as to reach well before the date fixed. 7. Once the requisite rectification is carried out by the learned First Appellate Court, the appellant herein shall have the right to file the appeal afresh, if so advised. 8. The appeal stands disposed of in the above terms. (V.K. Sharma) Judge. October 11, 2011. (cr)