HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT

JAIPUR

S.B. Civil Writ Petition No. 505 / 2017

Khubiram adopted Son of Late Shri Gamandi, by Caste Brahmin,

Khijuri Tehsil Roopwas District Bharatpur (Rajasthan)

----Petitioner

Versus

1. Gulandi W/o Madan

2. Amarchand

3. Gulab

4. Dwarika

All Sons of Late Shri Madan, by Caste Brahmin, Khijuri Tehsil

Roopwas District Bharatpur (Rajasthan)

5. Machla D/o Late Shri Madan W/o Rameshwar by Caste Brahmin,

Aruwa Tehsil Kirawali District Agra

6. Geeta D/o Late Shri Madan, W/o Ramesh by Caste Brahmin,

Bari, Tehsil Bari, District Dholpur C/o Subhash Sharma Ramesh

Sharma Nagla Raitawale Near Kedar Tyre Sirmathura District

Dholpur

7. Lajjaram S/o Maniram, by Caste Brahmin, Khijuri Tehsil

Roopwas District Bharatpur (Rajasthan)

----Respondents

_____________________________________________________

For Petitioner(s) : Mr. TC Sharma.

For Respondent(s) : Mr. Bhupendra Pareek.

_____________________________________________________

HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA

Order

31/01/2018

(1)

The matter comes up on application (No.73513/2017)

filed under Order 22 Rule 4 CPC for taking legal representative of

deceased respondent No.1 Gulkandi on record.

(2 of 6)

[CW-505/2017]

(2)

Counsel for the respondents informs that legal

representatives of respondent No.1 Gulkandi are already on

record.

(3)

In view of the above, Counsel for the petitioner does

not press application (No.73513/2017) and the same is

accordingly dismissed as not pressed.

(4)

Both the Counsel were heard on merits of the case.

(5)

The present writ petition has been preferred

challenging the order 20.04.2012 passed by Civil Judge & Judicial

Magistrate, Ist Class, Roopwas Distt. Bharatpur (hereinafter to be

referred as ‘learned trial Court’) and the appellate order dated

23.11.2016 passed by Additional District Judge, No.1, Bayana

Camp Court Roopbas Distt. Bharatpur (hereinafter to be referred

as ‘learned appellate Court’) whereby the application moved by

the plaintiff-petitioner for bringing legal representatives of

defendant No.1 on record as well as the application for recalling

the abatement order were rejected and the appeal was also

dismissed.

(6)

Facts of the case are that the petitioner-plaintiff had

filed a suit for permanent injunction wherein an interim order was

passed on 27.03.1998 restraining the respondents from interfering

with the peaceful use of the way and to maintain status quo.

(7)

An application was moved in the suit on 24.10.2009 by

defendant No.2 informing that defendant No.1 had expired two

years back and prayed that the suit be dismissed as having been

abated.

(3 of 6)

[CW-505/2017]

(8)

The petitioner submits that immediately thereafter on

30.10.2009 an application was moved by him for bringing legal

representatives of deceased respondent No.1 Madan on record. It

was pointed out in the application that plaintiff was an illiterate

person and had no knowledge that the suit cannot be proceeded

with in absence of bringing legal representatives of deceased

respondent No.1 on record. It was his case that the defendant

who had died, was being represented by his Counsel who was

continuously pursuing the matter in the Court for last two years

and the Counsel for the deceased did not inform about the death

of defendant No.1, therefore, he could not move any application

for bringing legal representatives on record. As soon as the

information was received, he immediately moved the appropriate

application and, therefore, the application ought to have been

allowed. However, the learned trial Court has rejected the

application and treated suit to be abated. The appellat