Chandarya and anr. Vs. Mohan and ors.

Chandarya and anr. vs Mohan and ors.

Disposition Petition allowed Court Rajasthan Decided May 05, 2009

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https://sooperkanoon.com/case/764598

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Citation: sooperkanoon.com/764598
Court: Rajasthan High Court
Judge: Mohammad Rafiq, J.
Decided On: May 05, 2009
Subject: Civil
Disposition: Petition allowed

Case Summary

AI-generated summary - not the official court judgment text.

Civil Procedure Code, 1908 - Order 1 Rule 10--Dismissal of suit as having abated--When not justified--Petitioner filed suit for declaratory relief and 'M', 'B' and 'K' have themselves applied for becoming the party under Order 1 Rule 10--Initially petitioners stated that 'B' died issueless and his wife also died, th...

Key legal issue: Civil
Outcome / disposition: Petition allowed

Parties & Advocates

Appellant / Petitioner

Chandarya and anr.

Respondent

Mohan and ors.

Legal References

Reported In: 2009(3)WLN56

Excerpt

civil procedure code, 1908 - order 1 rule 10--dismissal of suit as having abated--when not justified--petitioner filed suit for declaratory relief and 'm', 'b' and 'k' have themselves applied for becoming the party under order 1 rule 10--initially petitioners stated that 'b' died issueless and his wife also died, therefore, no legal heirs were required to be impleaded, but when they filed appeal for temporary injunction, they impleaded two daughters of 'b' as party--held, it was not proper to dismiss the suit as having abated--revenue appellate authority rightly accepted prayer of petitioners to implead two daughters of 'b' as his lrs and remanded matter for decision on merit. - - 3. learned counsel for the respondents has opposed the writ petition and submitted that order of the board of revenue is perfect, legal and reasonable which does not warrant any interference......no legal heirs were required to be impleaded. but when they filed appeal for temporary injunction, against the order passed by the assistant collector and acting city magistrate lalsot, they impleaded his two daughters as party. considering this fact, revenue appellate authority set-aside the order of abatement and accepted prayer of the petitioners to implead two daughters of bheru as his legal representatives and remanded the matter for decision on merit. board of revenue erred in interfering with the order passed by the revenue appellate authority. it is contended that even otherwise suit cannot be dismissed as having abated in toto because even after death of bheru, two other defendants were available and suit could be continued as against remaining two who were originally impleaded as defendants.3. learned counsel for the respondents has opposed the writ petition and submitted that order of the board of revenue is perfect, legal and reasonable which does not warrant any interference.4. having heard learned counsel for the parties and perused the material on record, i find that the revenue appellate authority has taken a reasonable approach in the matter by holding that once two daughters of bheru were impleaded as party in appeal and at one stage of proceedings, they were brought on record as his legal representatives, it was not proper to dismiss the suit as having abated and it therefore set-aside order of abatement and remanded matter to the acm for deciding it on merit. on facts also, it is evident that deceased bheru was impleaded as defendant on his own application filed under order 1 rule 10 cpc and was not impleaded as defendant by the petitioners. suit in any case could not have been taken as abated for the mere reason of the death of one of the defendants because nature of the relief that was claimed by the petitioners was in the shape of declaration and could not be said to be indivisible relief. board of revenue was not justified in interfering.....

Full Judgment

Mohammad Rafiq, J.

1. This writ petition has been against the order passed by Assistant Collector and Acting City Magistrate Lalsot dt. 30.04.1992 by which declaratory suit filed by the petitioners was dismissed as having abated and the order of the Board of Revenue dt. 30.10.2000 by which appeal of the respondents was allowed and the order of the Revenue Appellate Authority 30.08.1994 by which order of Assistant Collector and Acting City Magistrate Lalsot was set-aside, was reversed.

2. Learned Counsel for the petitioners has argued that petitioners when they originally filed suit for declaratory relief, Mohan, Bheru and Kalyan have themselves applied for becoming the party under Order 1 Rule 10 CPC. Initially, petitioners contended that Bheru died issueless and his wife also died therefore no legal heirs were required to be impleaded. But when they filed appeal for temporary injunction, against the order passed by the Assistant Collector and Acting City Magistrate Lalsot, they impleaded his two daughters as party. Considering this fact, Revenue Appellate Authority set-aside the order of abatement and accepted prayer of the petitioners to implead two daughters of Bheru as his legal representatives and remanded the matter for decision on merit. Board of Revenue erred in interfering with the order passed by the Revenue Appellate Authority. It is contended that even otherwise suit cannot be dismissed as having abated in toto because even after death of Bheru, two other defendants were available and suit could be continued as against remaining two who were originally impleaded as defendants.

3. Learned Counsel for the respondents has opposed the writ petition and submitted that order of the Board of Revenue is perfect, legal and reasonable which does not warrant any interference.

4. Having heard learned Counsel for the parties and perused the material on record, I find that the Revenue Appellate Authority has taken a reasonable approach in the matter by holding that once two daughters of Bheru were impleaded as party in appeal and at one stage of proceedings, they were brought on record as his legal representatives, it was not proper to dismiss the suit as having abated and it therefore set-aside order of abatement and remanded matter to the ACM for deciding it on merit. On facts also, it is evident that deceased Bheru was impleaded as defendant on his own application filed under Order 1 Rule 10 CPC and was not impleaded as defendant by the petitioners. Suit in any case could not have been taken as abated for the mere reason of the death of one of the defendants because nature of the relief that was claimed by the petitioners was in the shape of declaration and could not be said to be indivisible relief. Board of Revenue was not justified in interfering with the order passed by the Revenue Appellate Authority.

5. In the result, this writ petition is allowed. Judgment of Board of Revenue dt. 30.10.2000 (Ann.5) and that of the Assistant Collector and Acting City Magistrate Lalsot dt. 30.04.1992 (Ann.3) are set-aside and the judgment of the Revenue Appellate Authority dt. 30.08.1994 (Ann.4) is restored. Assistant Collector and Acting City Magistrate Lalsot shall proceed to decide the matter on merits.

Same Court & Year Rajasthan · 2009 Same Parties Chandarya and anr. vs Mohan and ors. Same Subject Civil Same Judge Mohammad Rafiq, J.

Civil