@JUDGMENTTAG-ORDER
Narendra Kumar Jain, J.@mdashAdmit.
2. Heard learned Counsel for the parties.
3. The sole plaintiff late Shri Ram Lal Verma died on 5th March, 2007 and an application under Order 22 Rule 3 CPC for substitution of his legal representatives was filed by his counsel on 16th May, 2007. The defendants filed written-reply to the application and raised an objection that the application has not been filed on behalf of the legal representatives nor their ''vakalatnama'' has been filed along-with the application, therefore, the suit has abated on expiry of period of limitation of 90 days, therefore, the suit is liable to be dismissed under Order 7 Rule 11 CPC. Subsequently, the plaintiff filed an application on 22nd September, 2007 u/s 151 CPC seeking permission to file ''vakalatnama'' on behalf of the legal representatives. The said application was also contested by the defendants by filing a written-reply. The trial court, vide its order dated 2nd November, 2007 allowed both the applications filed by the plaintiff under Order 22 Rule 3 as well as u/s 151 CPC and passed an order for substitution of legal representatives of deceased plaintiff on the record. The said order is under challenge in this writ petition preferred on behalf of the defendant.
4. The learned Counsel for the petitioner contended that the application dated 16th May, 2007 was not filed on behalf of the legal representatives of the deceased but it was filed duly signed by the Advocate, who was not authorized on behalf of the legal representatives as no ''vakalatnama'' of legal representatives was filed along-with the application, therefore, the trial court committed an illegality in passing the impugned order and in not dismissing the suit as abated in the facts and circumstances of the present case.
5. The learned Counsel for the respondent defended the impugned order passed by the trial court and prayed for dismissal of the writ petition.
6. I have considered the submissions of learned Counsel for the parties and examined the impugned order as well as other documents annexed with the writ petition and, after considering the same, I find that the application under Order 22 Rule 3 CPC was filed well in time and admittedly there was no delay in it. The only defect in the application was that it was not accompanied by ''vakalatnama'' of the legal representatives.
7. The plaintiff filed an application u/s 151 CPC seeking permission of the Court to place ''vakalatnama'' of legal representatives on the record. It was a discretionary matter of the trial court and the trial court permitted the plaintiff to place on record the ''vakalatnama'' of legal representatives and, in these circumstances, the learned trial court was right in not rejecting the plaint and in allowing both the applications of the plaintiff under Order 22 Rule 3 CPC.
8. The Hon''ble Supreme Court in
10. Having heard learned Counsel for the parties, in our opinion, the appeal deserves to be allowed. The case of the appellant before the District Court was that he was not aware of the pendency of the appeal filed by his father against the order passed by the Tehsildar. The father of the appellant died in June 1994 and the appellant came to know of the pendency of appeal somewhere in September 1994 when he received a communication from the advocate engaged by his father. Immediately, therefore, he contacted the said advocate, informed him regarding the death of his father and made an application. In such circumstances, in our opinion, the learned Counsel for the appellant is right in submitting that a hypertechnical view ought not to have been taken by the District Court in rejecting the application inter alia observing that no prayer for setting aside abatement of appeal was made and there was also no prayer for condonation of delay. In any case, when separate applications were made, they ought to have been allowed. In our opinion, such technical objections should not come in doing full and complete justice between the parties. In our considered opinion, the High Court ought to have set aside the order passed by the District Court and it ought to have granted the prayer of the appellant for bringing them on record as heirs and legal representatives of deceased Hanumanthappa and by directing the District Court to dispose of the appeal on its own merits. By not doing so, even the High Court has also not acted according to law.
9. In view of the above discussion, I do not find any merit in the writ petition and the same is accordingly dismissed with no order as to costs.
