- (1.) SINCE the common question of law and the facts and the incident is same, therefore, both the revisions heard together and decided by a common judgment and order.
(2.) HEARD learned counsel for the revisionist and the counsel for the respondents. These two revisions have been filed challenging the judgment and order dated 10.7.2002, inter alia, on the ground that ex-parte proceedings were drawn against the revisionist and he was not given any opportunity to adduce evidence in support of his claim. Submission of counsel for the revisionist is that the other brothers of the revisionist were not impleaded as party in spite of the order of the court dated 9.7.1998, but in spite of the aforesaid fact the claim petition was decided ex-parte. He further submits that after the death of the father of the revisionist, the liability is to be shared by all the brothers, whereas the revisionist was only represented and, therefore, the proceedings stood vitiated for non-substitution of the other heirs, who were required to be substituted as provided under law. In absence of proper substitution of the other heirs, the order of the trial court shifting the entire liability upon the shoulders of the revisionist cannot be sustained and is liable to be set aside. Counsel for the respondents has vehemently opposed the arguments of the counsel for the revisionist and has submitted that the revisionist has put in appearance, but he has not named the other heirs on account of which they could not be impleaded. Be that as it may, the fact remains that the other brothers of the revisionist were not impleaded as party, the revisionist moved an application on 3.1.2002 for recall of the ex-parte award, but the said application was rejected without considering the fact that all the heirs have not been brought on record. The revisionist though happens to be one of the sons of the deceased owner, the award having been passed against the revisionist alone cannot be sustained under law and is liable to be set aside. Both the revisions are accordingly allowed and the judgments and orders dated 10.7.2002 passed by the Vth Additional District Judge, Lucknow in Misc. Case Nos.1 of 2002 and 2 of 2002 are hereby set aside and the matter is remitted to the trial court. The revisionist will indicate the names of other brothers as provided under Order XXII Rule 10A CPC and the trial court shall bring on record the other heirs of the revisionist as contemplated under law and decide the case on priority basis. However, looking to the fact that the litigation is dragging since long and the claimants-respondents have got nothing up till now in spite of the award passed in their favour, the revisionist is directed to deposit an amount of Rs.25,000.00 before the trial court, which shall be released in favour of the claimants-respondents subject to furnishing of adequate security. Let the lower court record be sent back immediately.;