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HIGH COURT OF JUDICATURE FOR RAJASTHAN
VINIT KUMAR MATHUR
BANSIDHAR AND ORS – Appellant
Versus
OM PRAKASH AND ORS – Respondent
CW/4886/2015
The trial court erred in rejecting the application solely on the ground of delay without considering the contentions raised therein.
Headnote:
CIVIL PROCEDURE CODE - ORDER 1 RULE 8 - REPRESENTATIVE SUIT - MAINTAINABILITY - DELAY IN FILING APPLICATION - REJECTION OF APPLICATION
Fact of the Case:
Plaintiff filed a suit in a representative capacity under Order 1 Rule 8 CPC. During the pendency of the suit, one of the plaintiffs died. The petitioner-defendants filed an application objecting to the maintainability of the suit in a representative capacity. The trial court rejected the application solely on the ground that the suit had been pending for 12 years.
Finding of the Court:
The High Court allowed the writ petition, quashed the trial court's order, and remanded the matter back to the trial court for a fresh decision on the application.
Issues: Whether the trial court erred in rejecting the application solely on the ground of delay.
Ratio Decidendi: The High Court held that the trial court should have considered the submissions made in the application and dealt with the contentions raised therein. Mere pendency of the suit for 12 years cannot be a ground to reject the application.
Final Decision: The High Court allowed the writ petition, quashed the trial court's order, and remanded the matter back to the trial court for a fresh decision on the application.
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 4886/2015
1. Banshidhar S/o Bhera Ram B/c Mali, Aged about 53 years, R/c
Pulasar, Tehsil Sardarsahar, District Churu (Raj.),
2. Phusa Ram S/o Lakhan Ram, B/c Brahamin, Aged about 85
years, R/c Pulasar, Tehsil Sardarsahar, District Churu (Ra.),
3. Bajrang S/o Sagarmal B/c Brahamin, Aged about 55 years, R/
c Pulasar, Tehsil Sardarsahar, District Churu (Raj.),
4. Rajendra Prasad S/o Badri Prasad B/c Brahamin, Aged about
50 years, R/c Pulasar, Tehsil Sardarsahar, District Churu (Raj.),
5. Ashok Kumar S/o Badri Prasad B/c Brahamin, Aged about 38
years, R/c Pulasar, Tehsil Sardarshahar, District Churu (Raj.),
6. Munna Lal S/o Badri Prasad B/c Brahamin, Aged about 42
years, R/c Pulasar, Tehsil Sardarshahar, District Churu (Raj.),
----Petitioner
Versus
1. Omprakash S/o Jagdeesh Prasad, B/c Brahamin, R/o Pulasar,
Tehsil Sardarsahar, District Churu.
(Co-Plaintiff-Shrikrishan S/o Jagdeesh Brahamin died during the
pendency of the suit).
2. Dharmchandra S/o Badri Prasad B/c Brahamin, R/o Pulasar,
Tehsil Sardarshahar, District Churu,
3. Hanuman Prasad S/o Ramchandra, B/c Brahamin, R/o Pulasar,
Tehsil Sardarshahar, District Churu’
4. Gram Panchayat Pulasar through Sarpanch, Gram Panchayat,
Pulasar, Tehsil Sardarsahar, District Churu.
5. The State of Raj. Through the District Collector, Churu,
6. President, Gandhi Ashram, Sujangarh, District Churu.
----Respondent
For Petitioner(s)
:
Mr. Deelip Kawadia
For Respondent(s)
:
Mr. Rakesh Chotia
HON'BLE MR. JUSTICE VINIT KUMAR MATHUR
Order
09/01/2023
(2 of 4)
[CW-4886/2015]
The present writ petition has been filed against the order
dated 24.2.2015 passed by the learned trial court whereby the
trial court has rejected the application preferred by the petitioner.
Brief facts noted in the present case are that the plaintiff
filed a suit in the representative capacity under Order 1 Rule 8
CPC. During pendency of the suit proceedings, plaintiff
Shrikrishan S/o Jagdish died. In these circumstances, the
petitioner preferred an application raising objection with regard to
maintainability of the suit in the representative capacity. Learned
trial court vide order dated 24.02.2015 rejected the application
only on the ground that since the suit is pending consideration for
last 12 years therefore, such application is not maintainable.
Aggrieved against the order dated 24.02.2015, the present
writ petition has been filed.
Learned counsel for the petitioner submits that merely
because the suit was pending consideration for last 12 years, the
application preferred by the petitioner could not have been
dismissed. The petitioner has also raised other legal grounds in
the application which were not discussed and deliberated in the
order dated 24.02.2015. He further submits that the order dated
24.02.2015 is non-speaking order and does not disclose any
reason for the disposal of the application preferred by the
petitioner. He, therefore, prays that the writ petition may kindly be
allowed and the order dated 24.02.2015 may be quashed.
Per contra, learned counsel for the respondents submits that
the objections raised by the petitioner in the application were
deemed to have been considered and rejected as the suit
preferred by the plaintiff in the representative capacity was
allowed to be continued by the learned trial court after the same
(3 of 4)
[CW-4886/2015]
has met with parameters of maintainability of the suit. He also
submits that since the petitioner has preferred the application
after a delay of 12 years, therefore, the learned trial court has
rightly rejected the same on the ground of delay. He, therefore,
prays that no interference in the writ jurisdiction is warranted by
this Court and thus, the writ petition may kindly be dismissed.
I have considered the submissions made at the bar and gone
through the relevant record of the ca
