Rajasthan High Court - Jodhpur
Vinod Kumar And Ors vs Lrs.Of Gopi Bai And Ors on 20 December, 2021
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 1034/2012
Vinod Kumar And Ors.
----Appellant
Versus
Lrs.of Gopi Bai And Ors.
----Respondent
For Appellant(s) : Mr. Alkesh Aggarwal
For Respondent(s) : Mr. HR Soni
HON'BLE MR. JUSTICE SUDESH BANSAL
Judgment
20/12/2021
This miscellaneous appeal is filed by the appellants/plaintiffs
assailing the order of remand dated 14.5.2012 whereby the First
Appellate Court, the learned Addl. District Judge No. 1, Jaipur
Metropolitan quashed the judgment of trial court dated
16.10.2006 and remanded the appellant-plaintiff's suit for
permanent injunction for deciding afresh.
An application under Order 22 Rule 10 read with Section
151 CPC has been filed by two applicants namely; 1. Dr. Naveen
Kishoria and 2. Dr. Aparna Kishoria alleging interalia that initially
the suit property was in the ownership of Smt. Krishna Devi
(original plaintiff) herein who instituted suit for permanent
injunction but died during trial, so her legal representatives
were substituted as plaintiff Nos. 1/1 to ¼ who are appellant Nos
1 to 4 herein. They preferred this appeal against the remand order
and during course of appeal, they sold the suit property to the
appellant No. 5 namely Smt. Rami Devi vide sale deed dated
(2 of 5) [CMA-1034/2012]
5.4.2012 and, therefore, Rami Devi was added as appellant No. 5
in the appeal. Now both the applicants have purchased the suit
property by dated 29.12.2015 from the appellant No. 5 Rami Devi
and as all the rights, title and interest of appellants No. 1 to 5 in
the suit property have been acquired by the applicants, therefore,
they may be substituted/added as appellants in the present appeal
in addition to or in place of appellants No. 1 to 5.
As far as the appellants No. 1 to 5 are concerned, they have
already sold the property as mentioned here-in-above, therefore,
have lost interest in the suit property and it is only the present
applicants who have acquired rights/interest in the suit property.
The copy of the registered sale deed dated 29.12.2015 through
which the applicants purchased the suit property from the
appellant No. 5 Smt. Rami Devi is placed on record.
Counsel for the applicants further submits that Smt. Gopi Bai
was defendant No. 1 & UIT, Jodhpur was defendant No. 2 in civil
suit. Before trial Court defendant No. 1 Gopi Bai passed away and
in her place her legal representatives (respondents No. 1 to 5
herein) were substituted. Suit was decreed against LRs of
defendant No. 1 so they filed first appeal. Now during the course
of this appeal one of the LR of defendant No. 1 Gopi Bai
respondent No. 4 Manju has also died and since other LRs are
already on record, so her name may be deleted.
It has been submitted that as now the applicants have
acquired ownership and interest in the suit property so it is for
them to decide as to whether the proceedings of this litigation are
to continue or may settle the dispute amicably. It is jointly urged
by counsel for both the parties that in relation to the suit property
dispute has been amicably settled between the
(3 of 5) [CMA-1034/2012]
applicants/purchasers and Respondents No. 1,2, 4 7 & 5 i.e. LRs
of defendant No. 1 Gopi Bai. Respondents No. 2 UIT Jodhpur has
no concern with the dispute in present suit and neither suit was
not decreed against UIT nor any relief prayed against UIT,
Jodhpur.
A written compromise said to be executed between parties
has already been placed on record. Counsel for the applicant
submits that in view of the settlement arrived at between them
and the respondents in relation to suit property, they does not
want to pursue the original suit itself and they may be allowed to
withdraw the suit and consequently the appeal as well.
The respondents-defendants No. 1 to 5, the legal
representatives of defendant No. 1 Gopi Bai are appearing
through counsel Mr. HR Soni. Counsel for the respondents does
not dispute and admits that the suit property has been purchased
by the applicants Dr. Naveen Kishoria and Dr. Aparna Kishoria vide
registered sale deed dated 29.12.2015 and, therefore, they have
no objection, if the applicants are allowed to be substituted as
appellants in place of previous appellants No. 1 to 5 and if the
original suit itself is allowed to be withdrawn. As far as respondent
No. 4 Smt. Manju is concerned, he admits that since she has died,
therefore, her name may be deleted.
After hearing counsel for both the parties, it reveals from the
record that the original civll suit for permanent injunction was filed
by one Smt. Krishna Devi (original plaintiff) against Gopi Bai
defendant No. 1 and against UIT, Jodhpur(defendant No. 2). The
original civil suit was decreed vide judgment dated 16.10.2006 in
favour of the appellants No. 1 to 4 LRs of sole deceased (plaintiff)
affirming their possession over the suit property (plot No. 468)
(4 of 5) [CMA-1034/2012]
and the respondents No. 1 to 5, being LRs of deceased Defendant
No. 1, were restrained not to interrupt in the use and occupation
of the suit property by the plaintiffs.
Against the judgment and decree dated 16.10.2006, the
respondents 1 to 5 only preferred an appeal and the first
appellate court, vide judgment dated 14.5.2012 set aside the
judgment and decree of the trial court dated 16.10.2006 and
remanded the suit for deciding afresh. This order of remand
dated 14.5.2012 is under challenge in the present appeal.
Since the suit property has been purchased by the applicants
through registered sale deed dated 29.12.2015, for which private
respondents do not dispute rather admits that the right, title and
interest of the suit property now vest and rest with the applicants
only, in this view of the matter, the application filed by the
applicants under Order 22 Rule 10 read with Section 151 CPC is
allowed. Both the applicants Dr. Naveen Kishoria and Dr. Aparna
Kishoria are allowed to be added as appellants No. 6 & 7. The
another application to delete the name of the deceased
respondent No. 4 Manju is also allowed.
The amended cause title enclosed with the application is
taken on record. The Registry may up-lode the amended cause
tile of this appeal on on-line also.
Since the newly impleaded appellants No. 6 & 7 who alleges
to acquire absolute rights and interest of the suit property of the
appellants No. 1 to 5 through registered sale deed. If they do not
want to continue the appeal for the reason that seeks permission
to withdraw the suit itself at this stage, there is no legal hurdle in
allowing such prayer and, therefore, they are allowed to withdraw
the original suit itself. Learned counsel for the respondents
(5 of 5) [CMA-1034/2012]
have no objection in allowing the applicants to withdraw the
original suit. Since the suit at this stage. Since the suit itself has
been allowed to be withdrawn, the impugned order of remand
dated 4.5.2012 does not remain in force. As such, with consent of
both the parties this appeal is dismissed in view of the withdrawal
of suit itself.
The stay application and the other applications if any are also
disposed of.
The parties may file copy of this order before the trial court
to terminate the proceedings of suit further. In addition to that
the Registrar (Judicial) is directed to send the copy of this order
to the trial court for further compliance.
The trial court, taking this order on record, may terminate
the proceedings of civil suit and same be recorded as dismissed as
withdrawn accordingly.
(SUDESH BANSAL),J
ns. 57-1/-
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