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Dharamveer Singh v. Har Phool Singh And Others - WRIT - C No. 5190 of 2006 [2006] RD-AH 2088 (27 January 2006)


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Court No. 23

Civil Misc. Writ Petition No. 5190 of 2006

Dharamveer Singh Vs. Har Phool Singh & others

Hon'ble Umeshwar Pandey, J.

Heard learned counsel for the petitioner.

The learned counsel contends that the substitution application for deceased defendant given in the suit was though allowed by the trial court but two revisions filed separately by two defendants were allowed by the revisional court and order of substitution, as recorded by the trial court, was set aside. The revisional court did not find the grounds mentioned in the delay condonation application as justifiable for permitting the substitution after about a year of the death of the deceased and accordingly, the revision was allowed and the order of the trial court was set aside with  further direction that the matter of substitution be taken up afresh and pass appropriate order in the light of observations made in the body of the judgment of the revisional court. Thereafter, it so appears that one application under Section 151 C.P.C. was moved that actual legal position was not presented before the revisional court nor it was placed even before the trial court that the substitution of defendant, who has not contested the suit, has been exempted under the provisions of Order XXII, Rule 4 (4) C.P.C. The deceased defendant No. 1 Shobha Ram, was not contesting the suit and the suit was proceeding exparte against him.

In the light of aforesaid submissions of the learned counsel it so appears that the provisions of Order XXII, Rule 4 (4) C.P.C. does lay down that the court may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant, who has not filed written statement or who after filing the same has failed to appear and contest the suit. Therefore, in case the defendant No. 1 deceased Shobha Ram was not contesting the suit and it was proceeding exparte against him, the benefit of aforesaid provisions of the Code whether to be accorded to the plaintiff petitioner or not is a relevant question to be seen by the courts and the same has not been at all looked into for such consideration by both the courts below. In case, such question was not taken up at the stage when the revision was decided, a prayer for review of the revisional order would definitely lie within the provisions of Order XLVII, Rule 1 C.P.C. It is definitely a very important point of law, which had been raised by the plaintiff but it was not raised as it should have been raised. An application under Section 151 C.P.C. in this context was wholly irrelevant. The petition for review of the judgment of the revisional court was the real remedy, which the petitioner should have resorted to and in this view of the mater it appears to be just and proper that the petitioner may be given liberty to exercise this option and file a review petition before the revisional court against the two judgments delivered by it in Civil Revision Nos. 12 of 1999 and 15 of 1999.

In the light of aforesaid, this petition is disposed of with the direction that the petitioner may present the review petition in the aforesaid two revisions and place its request for reviewing the impugned orders passed by the said courts in the light of the provisions of Order XXII, Rule 4 (4) C.P.C. The review petition, if presented, the revisional court will take up the same expeditiously and dispose it of within a period of three months from the date of filing a certified copy of this order.




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