Rajasthan High Court
Rajesh S/O. Late Mohanlal Ji vs Rudhmal S/O. Late Murlidhar on 17 November, 2022
Bench: Narendra Singh Dhaddha
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 8396/2022
Rajesh S/o. Late Mohanlal Ji, Aged About 46 Years, Resident Of
B-215, Janta Colony, Jaipur (Raj.)
----Petitioner
Versus
1. Rudhmal S/o. Late Murlidhar, Resident Of Plot No.766,
Murli Bhawan, Near Ayappa Mandir, Mahaveer Nagar,
Durgapura, Jaipur (Raj.) (Since Deceased)
1/1. Smt. Muli Devi W/o. Rudmal, (Deceased)
2. Om Prakash S/o. Shri Rudmal Ji, Resident Of Plot No.39,
Lal Singh Judo Colony, Tonk Road, Jaipur.
3. Babulal S/o. Shri Rudmal Ji, Resident Of Bajaji Tent
House, Kohinoor Chambers, Khatipura Crossing, Jaipur
(Raj.)
4. Ramesh S/o. Rudmal Ji, Resident Of Plot No.766, Murli
Bhawan, Near Ayappa Mandir, Mahaver Nagar, Durgapura,
Jaipur (Raj.)
5. Murari S/o. Shri Rudmalji, Resident Of Plot No.50,
Santosh Nagar, Opposite J.k. Petrol Pump, Gopalpura
Byepass, Jaipur (Raj.)
6. Mamraj S/o. Shri Rudmal Ji, Resident Of Plot No.766,
Murli Bhawan, Near Ayappa Mandir, Mahaveer Nagar,
Durgapura, Jaipur (Raj.)
7. Suresh S/o. Shri Rudhmal Ji, Resident Of Plot No.766,
Murli Bhawan, Near Ayappa Mandir, Mahaveer Nagar,
Durgapura, Jaipur (Raj.)
8. Smt. Meera W/o. Shri Ashok Agarwal, Resident Of Mukam
Post Virat Nagar, Via Shahpura, District Jaipur (Raj.)
9. Smt. Santosh W/o. Shri Vimal Agarwal, Resident Of Bank
Colony, Near Hero Honda Showroom, Jaipur Road, Ajmer
(Raj.) (Deceased)
10. Smt. Shakuntala W/o. Shri Rajendra Agarwal, Resident Of
Ganesh Trading Company, Jaipur Road, Madanganj,
Kishangarh, District Ajmer (Raj.)
11. Bharatmal Ji, S/o. Late Chothmal
12. Harish, S/o. Shri Bharatmal Ji
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13. Sunil, S/o. Shri Bharatmal Ji
14. Anil S/o. Shri Bharatmalji, Resident Of B-3, Janta Colony,
Jaipur (Raj.)
15. Smt. Sanju W/o. Rajesh Agarwal, Near Bhagwati Tent
House, Resident Of Janta Colony, Jaipur.
16. Smt. Narangi Devi W/o. Late Prahlad Ji, (Deceased)
17. Shambhu Dayal, S/o. Late Prahladji
18. Gori Shankar S/o. Late Prahladji, Resident Of B-215,
Janta Colony, Jaipur.
19. Smt. Prem W/o. Shri Hanuman Agarwal, Resident Of/
Through Goyal Auto Spares, Exhibition Road, Patna
(Bihar).
20. Smt. Malti Devi W/o. Shri Shiv Kumar Agarwal, Resident
Of Near Kareri Bus Stand, Ajeetgarh, District Sikar.
21. Smt. Saroj W/o. Shri Rambabu Agarwal, Resident Of
Shubham Textiles, Tonk Road, Jaipur.
22. Smt. Shashi Agarwal W/o. Goverdhan Agarwal, Resident
Of Shop No.3, Dehar Ke Balaji, Sikar Road, Jaipur (Raj.)
23. Smt. Asha W/o. Shri Sanjay Agarwal, Resident Of Garg
Trading Company, Tonk Road, Lal Kothi, Near Mandi,
Jaipur.
24. Smt. Krishna Devi W/o. Late Shri Mohan Lal Ji, Resident
Of B-215, Janta Colony, Jaipur (Raj.)
25. Smt. Suman W/o. Shri Gopal Agarwal, Resident Of B-38,
Ram Nagar, Sodala, Jaipur (Raj.)
26. Smt. Manju W/o. Rajesh Agarwal, Resident Of House
No.17, Jai Ambey Nagar, Tonk Road, Jaipur (Raj.)
27. Smt. Shashi Agarwal W/o. Mukesh Agarwal, Resident Of
House No.445, First Crossing, Lalji Sand Ka Rasta, Choura
Rasta, Jaipur (Raj.)
28. Smt. Mehga Agarwal W/o. Shri Varun Agarwal, Resident
Of House No.3B, Hida Ki Mori, Ramganj Bazar, Jaipur
(Raj.)
29. Smt. Umrawati W/o. Late Birdi Chand, Resident Of
Fatehpur Bansa, Tehsil Chomu, District Jaipur (Deceased)
29/1. Kailash, S/o. Late Birdhi Chand
29/2. Shankar Lal, S/o. Late Birdhi Chand
29/3. Maliram, S/o. Late Birdhi Chand
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29/4. Sitaram D/o. Late Birdhi Chand,
Residents Of Fatehpur Bansa, Tehsil Chomu, District
Jaipur (Raj.)
30. Smt. Narangi Devi W/o. Late Shri Phool Chandji, Resident
Of Bashiratganj, Near Char Bhag Railway Station,
Lukhnow (Deceased)
30/1. Ramavtar, S/o. Late Shri Phool Chandji
30/2. Subhash, S/o. Late Shri Phool Chandji
30/3. Padam, S/o. Late Shri Phool Chandji
30/4. Nimmo, D/o. Late Shri Phool Chandji
30/5. Munni, D/o. Late Shri Phool Chandji
30/6. Meera, D/o. Late Shri Phool Chandji
30/7. Krishna, D/o. Late Shri Phool Chandji
30/8. Rajdulari D/o. Late Shri Phool Chandji,
Residents Of Bashirganj, Near Charbah Railway Station,
Lukhnow (Raj.)
31. Smt. Bhagwati Devi W/o. Late Shri Radhey Shyam Ji,
Resident Of B-61, Opposite Murgikhana, Janta Colony,
Jaipur (Deceased)
31/1. Rambabu, S/o. Late Radheyshyam Ji
31/2. Shyam Babu, S/o. Late Radheyshyam Ji
31/3. Geeta Devi, D/o. Late Radheyshyam Ji
31/4. Maina Devi D/o. Late Shri Radhey Shyam Ji, (Since
Deceased)
31/4/1 Lokesh, S/o. Maina Devi
31/5. Shanti Devi, D/o. Late Radheyshyamji
31/6. Manju Devi D/o. Late Shri Radhey Shyamji,
Residents Of B-61, Opposite Murgikhana, Janta Colony,
Jaipur
32. Smt. Godawari W/o. Late Rambharosi, Resident Of
Joshiyon Ka Mohalla, Behind Lata Cinema, Jhotwara,
Jaipur (Deceased)
32/2 Mahendra, S/o. Late Ramgopalji
Vishwanath, S/o. Late Ramgopalji
32/3. Ramvatar, S/o. Late Ramgopalji
32/4. Ashok, S/o. Late Ramgopalji
32/5. Ilyachi, D/o. Late Ramgopalji
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32/6. Shakuntala, D/o. Late Ramgopalji
32/7. Urmila, D/o. Late Ramgopalji
32/8. Sangeeta D/o. Late Ramgopalji,
Residents Of Joshiyon Ka Mohalla, Behind Lata Cinema,
Jhotwara, Jaipur.
33. Smt. Kalawati W/o. Late Bhagirath, Resident Of Village
Bhabru, Near Pavta, Kotputli, District Jaipur (Raj.)
(Deceased)
33/1. Maliram, S/o. Late Bhagirath
33/2. Ramkaran, S/o. Late Bhagirath
33/3. Mamraj, S/o. Late Bhagirath
33/4. Chameli D/o. Late Bhagirath,
Resident Of Village Bhabru, Near Pavta, Kotputli, District
Jaipur (Raj.)
34. Smt. Budhi W/o. Laxmi Narayan, Resident Of Near
Sanganer Road, Roop Vihar Colony, Jaipur (Deceased)
35. M/s. Hariyali Bio Farms Pvt. Ltd., Through Director Smt.
Meenaakshi Chaturvedi W/o. Shri Satish Chaturvedi,
Resident Of Plot No.12, Ugam Path, Banipark, Jaipur
(Raj.)
----Respondents
For Petitioner(s) : Mr. R. K. Daga, Adv.
For Respondent(s) : Mr. G. P. Sharma, Adv.
Mr. Mahesh Chand Gupta, Adv.
HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA
Order
ORDER RESERVED ON :: 14.11.2022
ORDER PRONOUNCED ON :: 17.11.2022
This Civil Writ Petition has been filed by the petitioner under
Article 227 of the Constitution of India and Order 22 Rule 4 (4)
and Section 151 CPC against the order dated 10.03.2022 passed
by learned Additional District & Sessions Judge No.3, Jaipur
Metropolitan, Jaipur in Case No.03/2008 whereby learned trial
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court has dismissed the application under Order 22 Rule 4(4) CPC
filed by the petitioner.
Learned counsel for the petitioner submits that petitioner
had filed the partition suit in which evidence of the parties were
recorded by the trial court. After that, matter was posted for the
final arguments. At that time, learned counsel for the defendants
had informed the court that defendant Nos.9, 16, 29, 30, 31, 32,
33 and 34 were died during the pendency of the suit and their
legal heirs were not on record. Learned counsel for the petitioner
also submits that petitioner had filed an application before the trial
court on 04.01.2022 under Order 22 Rule 4 (4) read with Section
151 CPC that after due diligence, petitioner failed to recognize the
legal heirs of the defendants and suit was not contested by these
defendants. So, exemption be granted to the petitioner for
substituting the legal heirs of the defendants but trial court vide
order dated 10.03.2022 dismissed the application without any
cogent reason. Learned counsel for the petitioner also submits
that in order to expedite the process of law, amendment was
made in order 22 for exempting the legal heirs of the defendants
for substitution. Learned counsel for the petitioner also submits
that these defendants are not contesting parties and they had not
appeared after service and had not filed the written statements.
So, exemption be granted to the petitioner for substituting the
legal heirs of the defendants.
Learned counsel for the petitioner has relied upon the
following judgments : (1) Krishnaveni & Ors. Vs. Ramchandra
Naidu & Anr. reported in AIR 1998 Madras 379; (2) Mata
Prasad Mathur (Dead) by Lrs. Vs. Jwala Prasad Mathur &
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Ors. reported in (2013) 14 SCC 722 and (3) Sarathamani Vs.
Chellammal @ Thangammal reported in 2013 (1) MWN
(Civil) 113.
Learned counsel for the respondents submits that order of
the trial court is well reasoned and trial court in its order clearly
mentioned that there would be multiplicity of suit if exemption be
granted to the petitioner. Learned counsel for the respondents also
submits that scope of Article 227 of the Constitution of India is
very limited and this court cannot reverse the discretion exercise
by the trial court. So, petition filed by the petitioner be dismissed.
Learned counsel for the respondents has relied upon the
judgment of the Apex Court in Shalini Shyam Shetty & Anr. Vs.
Rajendra Shankar Patil reported in (2010) 8 SCC 329.
I have considered the arguments advanced by learned
counsel for the petitioner as well as learned counsel for the
respondents.
It is an admitted position that petitioner had sought
exemption for substituting the legal heirs of defendants who were
not contesting parties in the main suit and they had not appeared
after service and had not filed the written statements. So, in my
considered opinion, trial court had committed mistake in rejecting
the application filed by the petitioner under Order 22 Rule 4 (4)
read with Section 151 CPC. So, petition filed by the petitioner
deserves to be allowed.
Hence, the Civil Writ Petition is allowed. The order of the trial
court dated 10.03.2022 regarding above mentioned application is
set aside and defendants who were not contested parties in the
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main suit, so, exemption is granted to the petitioner for
substituting the legal heirs of the said defendants.
Stay application also stands disposed of.
(NARENDRA SINGH DHADDHA),J
Jatin/70
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