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Mohan Lal Bangia v. Addl.Civil Judge (S.D.) And Tohers Cation And Others - WRIT - C No. - 48794 of 2007  RD-AH 16306 (4 October 2007)
HIGH COURT OF JUDICATURE AT ALLAHABAD
Civil Misc. Writ Petition No. 48794 of 2007
Mohan Lal Bangia
Addl. Civil Judge (Senior Division), Ghaziabad and others
Hon'ble Krishna Murari, J.
Heard learned counsel for the petitioner.
By means of this petition, the petitioner has challenged the order dated 3.8.2007 passed by the Additional Civil Judge (Senior Division), Ghaziabad allowing the restoration application filed by contesting respondents.
Facts, giving rise to the dispute are as under ;
Dinesh Bangia, predecessor-in-interest of the contesting respondents no. 2/1 to 2/3 filed a suit for injunction and declaration impleading the petitioner as defendant. The said suit came to be dismissed in default on 4.9.2006. Thereafter, an application dated 2.11.2006 was moved by the contesting respondents no. 2/1 to 2/3 under Order IX Rule 13 read with Section 151 of the Code of Civil Procedure, 1908 to recall the order dated 4.9.2006 on the ground that plaintiff Dinesh Bangia had died on 9.6.2006 and they had no knowledge about the pendency of the suit. It was only when the plaintiff-petitioner asked the respondents to vacate the premises and told them that stay order passed in the suit was vacated then they made enquiries and came to know about the suit and its dismissal and moved application to recall the said order. Additional Civil Judge (Senior Division), Ghaziabad vide impugned order dated 3.8.2007 allowed the same. Aggrieved, the petitioner has approached this Court.
It has been urged by the learned counsel for the petitioner that the trial court has wrongly and illegally allowed the recall application in as much as the contesting respondents were not impleaded as party in the suit hence the application at their behest is not maintainable.
I have considered the argument advanced by the learned counsel for the petitioner and perused the record.
It is undisputed that the contesting respondents no. 2/1 to 2/3 were legal heirs and representatives of the deceased plaintiff Dinesh Bangia and as such were legally entitled to continue the suit on his behalf. Argument advanced by the learned counsel for the petitioner is totally misconceived in as much as in their capacity as legal heirs and representative of deceased plaintiff, they were entitled to be substituted in his place and continue the proceedings.
In view of the above, there is no scope for interference in the impugned order. The writ petition accordingly fails and is dismissed in limine.
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