The court emphasized that the defendants' failure to show good cause for their non-appearance justified the trial court's decision to proceed exparte against them.

JUDGMENT :

Manoj Kumar Gupta, J.

Ref:- C.M. Abatement Application No.329672 of 2013

2. Heard counsel for the parties.

3. Respondents no.4 and 5 have filed the application stating that petitioner no.3 had died long back but his heirs and legal representatives having not been brought on record, the instant petition has abated and be dismissed accordingly.

4. Sri H.R. Mishra, learned senior counsel appearing on behalf of the petitioners submitted that petitioner no.3 (defendant no.3 in the suit) was impleaded in the suit on the allegation that he was interfering in the management of the temple by plaintiff no.2, who claimed to be sole Sarvarakar of plaintiff no.1 (deity). A written statement was filed by defendants no.1 and 2 and in para 19 thereof, it is stated that a Committee was constituted for managing the affairs of the temple. Defendant no.3 (petitioner no.3 herein) was one of the members of the said Committee. It is urged that since the dispute in the suit does not relate to any personal right to property but right of management of the temple, being member of the Committee, therefore, after death of petitioner no.3, the petition would not abate.

5. Counsel for respondents no.4 and 5 is not in a position to dispute the said submission.

6. In my opinion, there is considerable force in the submission of learned counsel for the petitioners. Since defendant no.3 (petitioner no.3 herein) was impleaded in the suit not in his personal capacity, but on account of the claim of alleged right of management of the trust property, consequently, upon his death, his heirs and legal representatives are not required to be brought on record nor the instant petition would abate as a result thereof.

7. Accordingly, the application is disposed of by providing that the petitioners shall mention the fact about the death of petitioner no.3 against his name but it shall not be necessary to bring on record his heirs and legal representatives.

Order on the Petition

8. Supplementary affidavit filed today is taken on record.

9. Heard Sri H.R. Mishra, learned senior counsel assisted by Sri V.P. Rai for the petitioners and Sri A.K. Srivastava for respondents no.4 and 5.

10. The instant petition is directed against the orders dated 11.2.1998 and 15.3.2004 passed by the trial court in Original Suit No.303 of 1985 and the order dated 7.10.2004 passed by the revisional court. The petitioners are defendants in the suit. The plaintiff-respondents instituted the suit for declaration that plaintiff no.2 has exclusive right of management of the properties of the Deity, plaintiff no.1 and the defendants be restrained from interfering in his said right. After service of summons, defendants no.1 and 2 filed their written statement traversing the plaint allegations. On 11.2.1998, the plaintiff was present, while no one was present on behalf of the defendants. There was also no adjournment application on their behalf, therefore, the court directed for proceeding exparte against the defendants fixing 23.5.1998 for recording of exparte evidence. The defendant-petitioners filed an application for recall of the order dated 11.2.1998 on 15.1.2004 alongwith another application seeking condonation of delay in filing the recall application. The explanation furnished by the petitioners for their non-appearance on 11.2.1998 was that petitioner no.1, at the time of institution of the suit, was a minor and the suit was instituted against him with his mother as guardian. Petitioners no.1 and 2 became dependent upon petitioner no.3 (defendant no.3). Defendant no.3 got negligent in doing pairvi. Petitioner no.1 used to come to the court and return back after noting the date, as informed by their counsel. He was not aware of the exact nature of proceeding. Subsequently, the counsel did not pursue the case properly, resulting in passing of the order to proceed exparte against the petitioner-defendants. Petitioner no.1 came to know of the instant suit when on 24.6.2003, the respondents tried to p