ORDER

This petition is directed against the impugned order dated

19.01.2021 passed in Misc.No.25092/2011 by the 74th Addl. City Civil & Sessions Judge, Bengaluru, whereby the application – I.A.No.3 filed by the respondents under Order 22 Rule 3 CPC seeking to come on record as legal representatives of deceased plaintiff – Umar Abdul Sattar Vahedna was allowed by the trial Court.

2. Heard learned counsel for the petitioners and learned counsel for the respondents and perused the material on record.

3. The material on record discloses that the proposed applicants are the wife and children of late Umar Abdul Sattar Vahedna, who instituted the aforesaid Misc.25092/2011 under Order 39 Rule 2A CPC interalia contending that the petitioners herein have willfully disobeyed and attempted contempt of the order of temporary injunction dated 05.02.2009 passed in favour of the respondent – plaintiff against the petitioners – defendants. The said Misc.25092/2011 is being contested by the petitioners.

4. During pendency of the said proceedings, the aforesaid Umar Abdul Sattar Vahedna having expired on 12.09.2019, the respondents herein filed an application to come on record as his legal representatives and to prosecute the matter. The said application having been opposed by the petitioners, the trial Court proceeded to pass the impugned order by allowing the said application, aggrieved by which, the petitioners are before this Court by way of the present petition.

5. In my considered opinion, in the light of the provisions contained in Section 141 and 146 CPC, which permits the legal representatives of deceased party to continue to prosecute the proceedings after the demise of the original party, even in Miscellaneous Proceedings, the trial Court was fully justified in allowing the application by holding as under:

“The wife and children of petitioner filed the instant application U/O.22 Rule 3 of CPC to bring them on record as LRs of petitioner. 2. In the affidavit annexure to the application, 2nd applicant has stated that, the respondents violated the temporary injunction order. Therefore his father filed the instant petition U/ O 39 Rule 2(a) of CPC. During the pendency of the petition, his father passed away. Therefore his wife and children are to be brought on record as his legal heris to prosecute the instant petition. On these and other grounds stated in the affidavit, he prays to allow the instant application.

3. Respondents resisted the application by filing objection. They contend that, the order of injunction is a personal relief. Therefore it comes to end on the death of petitioner. Therefore the LRs of petitioner cannot prosecute this petition. Further respondents contend that, having regard to the defence taken by them, the legal heirs of petitioner would not succeed to the suit property. Therefore they have no right over the suit property. Hence the right to sue would not survive to the LRs of the petitioner to prosecute the instant petition. On these and other grounds stated in the objections, respondents pray to dismiss the instant application. 4. Heard the counsel on both side.

The counsel for respondents has also filed written arguments.

5. The point for consideration is:

Whether the LRs of petitioner are to be permitted to come on record to prosecute the instant petition?

6. My finding on the above point is in the AFFIRMATIVE for the following:

REASONS

7. A perusal of record would show that, petitioner has filed OS.No.25228/2009 restraining respondents from interfering with his possession of the suit property morefully described in the plaint and causing damages to the said property. The Court has granted Exparte AdInterim order of Temporary Injunction restraining defendants 1 to 5 from interfering with petitioner’s possession of suit property till filing of objection. On 12/04/2011 petitioner has filed the instant petition alleging that, respondents in gross violation of the Exparte AdInterim Order of temporary injunction dated:05/02