Kanti Kumar Vs. Birdh Mal and ors.

Kanti Kumar vs Birdh Mal and ors.

Type Court Judgment Court Rajasthan Decided Apr 27, 2000

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Citation: sooperkanoon.com/769721
Court: Rajasthan High Court
Judge: N.P. Gupta, J.
Decided On: Apr 27, 2000
Case Number: S.B. Civil Rev. Petition No. 123 of 1998
Subject: Civil

Case Summary

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

Civil Procedure Code, 1908 - Order 22 Rule 4(4), Order 23 Rule 1--Deletion of defendant--Plaintiff wanting that one of the persons, who is dead, may be deleted from the array of defendants--Trial Court should not refuse the request in view of Order 23 Rule 1, whatever the consequences.;Revision Petition Allowed -

Key legal issue: Civil

Parties & Advocates

Appellant / Petitioner

Kanti Kumar

Respondent

Birdh Mal and ors.

Legal References

Reported In: 2000(2)WLN276

Excerpt

civil procedure code, 1908 - order 22 rule 4(4), order 23 rule 1--deletion of defendant--plaintiff wanting that one of the persons, who is dead, may be deleted from the array of defendants--trial court should not refuse the request in view of order 23 rule 1, whatever the consequences.;revision petition allowed - .....has been received with a report that he has expired. however, having gone through the relevant record and the controversy involved, in my view, it is not necessary to wait for the service of these non-petitioners.2. by the impugned order the learned trial court has dismissed the petitioner's application filed under order 22 rule 4(4) seeking prayer to have the name of defendant no. 2 deleted. this application has been dismissed on the ground that the suit property is hindu undivided family of defendants no. 1, 2, 3, 4 and 5 along with the plaintiff, and therefore, all these persons are necessary parties and if any-one of them dies his legal representatives are necessary to be brought on record. with these finding the learned court below has held the suit to have abated to the extent of defendant no. 2.3. without going into the merits of the findings, in my view, when the plaintiff seeks to delete the name of defendant no. 2 by contending that on account of his death, and on account of not bringing his legal representatives on record the suit will not be adversely affected. in such circumstances there could possibly be no legitimate objection in deleting the name of defendant no. 2 from the array of the defendants. whatever the legal consequences of the deletion of the name of defendant no. 2 mohanlal as to proper constitution of the suit or otherwise are will naturally be gone into during the course of trial but when the plaintiff does not want to proceed with his suit against the defendant no. 2 and wants to delete his name, there could possibly be no objection in view of the clear language of order 23 rule 1 except that of cost and since nobody is there to claim the cost, as such, the petitioner is allowed to delete the name of defendant no. 2 mohanlal and the learned trial court shall now proceed with the trial in accordance with the law.4. the revision petition stands disposed of accordingly.

Full Judgment

N.P. Gupta, J.

1. ln this revision the office has reported that non-petitioner Nos. 2 and 3 have not been served, the notice of respondent No. 2 has been received unserved for want of fresh address while the respondent No. 3 has been received with a report that he has expired. However, having gone through the relevant record and the controversy involved, in my view, it is not necessary to wait for the service of these non-petitioners.

2. By the impugned order the learned trial court has dismissed the petitioner's application filed under Order 22 Rule 4(4) seeking prayer to have the name of defendant No. 2 deleted. This application has been dismissed on the ground that the suit property is Hindu Undivided Family of defendants No. 1, 2, 3, 4 and 5 along with the plaintiff, and therefore, all these persons are necessary parties and if any-one of them dies his legal representatives are necessary to be brought on record. With these finding the learned court below has held the suit to have abated to the extent of defendant No. 2.

3. Without going into the merits of the findings, in my view, when the plaintiff seeks to delete the name of defendant No. 2 by contending that on account of his death, and on account of not bringing his legal representatives on record the suit will not be adversely affected. In such circumstances there could possibly be no legitimate objection in deleting the name of defendant No. 2 from the array of the defendants. Whatever the legal consequences of the deletion of the name of defendant No. 2 Mohanlal as to proper constitution of the suit or otherwise are will naturally be gone into during the course of trial but when the plaintiff does not want to proceed with his suit against the defendant No. 2 and wants to delete his name, there could possibly be no objection in view of the clear language of Order 23 Rule 1 except that of cost and since nobody is there to claim the cost, as such, the petitioner is allowed to delete the name of defendant No. 2 Mohanlal and the learned trial court shall now proceed with the trial in accordance with the law.

4. The revision petition stands disposed of accordingly.

Same Court & Year Rajasthan · 2000 Same Parties Kanti Kumar vs Birdh Mal and ors. Same Subject Civil Same Judge N.P. Gupta, J.

Civil