Vinit Kumar vs Raj Kumar And Ors
2022 Latest Caselaw 7755 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

               S.B. Civil Writ Petition No. 3462/2017

1.     Vinit Kumar S/o Late Shri Mohanlal Jain, Caste Jain,
       Mochiwada, Kumharo Ki Gali, Sikar, Tehsil And District
       Sikar
2.     Smt. Saroj Devi W/o Late Shri Mohanlal Jain, Caste Jain,
       Mochiwada, Kumharo Ki Gali, Sikar, Tehsil And District
       Sikar
                                                                     ----Petitioners
                                    Versus
1.     Rajkumar S/o Late Shri Ratanlal, Caste Sethi Jain,
       Mochiwada, Kumharo Ki Gali, Sikar, Tehsil And District
       Sikar Presently At Shriji Nagar, Durgapur, Jaipur
2.     Vimal Kumar S/o Late Shri Ratanlal, Caste Sethi Jain,
       Mochiwada, Kumharo Ki Gali, Sikar, Tehsil And District
       Sikar. Presently At Siddarth Nagar, Near Jain Mandir,
       Jaipur. Deceased Suit Abated Vide Order Dated 27.4.2016
3.     Smt.    Manphooli        W/o      Caste      Sethi        Jain,   Mochiwada,
       Kumharo Ki Gali, Sikar, Tehsil And District Sikar Presently
       At   Shriji   Nagar,      Durgapur,        Jaipur.        Deceased,    Name
       Deleted Vide Order Dated 5.3.2016
4.     Smt Kanchan D/o Late Shri Ratanlal Sethi Jain, W/o Shri
       Gyanchand Badjatya, Caste Jain, Village Ranoli, Tehsil
       Dataramgarh, District Sikar
5.     Smt. Prem Devi D/o Late Shri Ratanlal Sethi Jain W/o Shri
       Niraml Kumar Pahariya, Purliya, West Bengal
6.     Smt. Chanda D/o Late Shri Ratanlal Sethi Jain, W/o
       Omprakash Chabra Jain, Surya Nagar, Tonk Road, Jaipur
                                                                   ----Respondents

For Petitioner(s) : Mr. Rahul Agarwal, Adv.

Mr. Akash Gupta, Adv.

For Respondent(s) : None Present

HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA

Order

(2 of 3) [CW-3462/2017]

ORDER RESERVED ON :: 01.12.2022

ORDER PRONOUNCED ON :: 12.12.2022

This Civil Writ Petition under Article 227 of the

Constitution Of India has been filed against the orders dated

27.04.2016 and 02.06.2016 passed by learned Additional District

& Sessions Judge No.1, Sikar (hereinafter referred to as 'learned

trial Court).

Learned counsel for the petitioners submits that the

respondent Nos.1 & 2 had filed a civil suit against the petitioners.

Learned counsel for the petitioners further submits that the

respondent No.2 Vimal Kumar died on 22.05.2014. After that,

respondent No.1 had filed an application under Order 22 Rule 1

and 2 CPC that by way of oral settlement, Vimal Kumar has

released all his rights in the suit property in favour of respondent

No.1 and prayed to delete the name of Vimal Kumar from array of

cause-title. Learned counsel for the petitioners further submits

that at that time, petitioners had filed an application under Order

22 Rule 3 and 9 CPC that the suit stands abated as a whole on

account of not filing the application within time by respondent

No.1 for taking the legal heirs of respondent No.2 on record but

learned trial Court vide order dated 27.04.2016 allowed the

application filed by the respondent No.1 and dismissed the

application filed by the petitioners. Learned counsel for the

petitioners further submits that the learned trial Court failed to

appreciate the mandatory legal provision of order 22 Rule 3 and 9

CPC and the suit stands abated automatically. No application filed

by the respondent No.1 for setting-aside the abatement. Learned

counsel for the petitioners further submits that the suit property is

(3 of 3) [CW-3462/2017]

ancestral property of the respondent Nos.1 & 2 and the

petitioners. So, as per the legal requirement, legal heirs of the

respondent No.2 Vimal Kumar be brought on record within

limitation. So, order of the learned trial Court be set-aside.

Learned counsel for the petitioners has placed reliance

upon the judgments passed by the Hon'ble Apex Court in the case

of Municipal Council Mandsaur Vs. Fakirchand and another

reported in AIR 1997 SC 1251 and in the case of Babu

Sukhram Singh Vs. Ram Dular Singh & Others reported in

AIR 1973 SC 204.

None present on behalf of the respondents after service

of notice.

I have considered the arguments advanced by learned

counsel for the petitioners and perused the impugned order.

Learned trial Court in its order clearly stated that where

there are several plaintiffs and on account of death of the one

plaintiff, right to sue survive in the remaining plaintiffs. So, in my

considered opinion, learned trial Court had not committed any

error in allowing the application filed by the respondents and

dismissing the application filed by the petitioners. So, present

petition is being devoid of merits and liable to be dismissed.

Hence, this Civil Writ Petition stands dismissed.

All pending applications stand disposed of.

(NARENDRA SINGH DHADDHA),J

Gourav/47

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