V.K.Shukla, J. - (1.) BRIEF background of the case is that plaintiff-respondent No.2, Nafeesul Rehman son of Habeebulla, instituted original suit No.473 of 1986 before the trial court praying therein for specific performance of contract of sale against defendant-appellants, who claim themselves to be bona fide purchaser without notice during pendency of suit. Said suit was decreed on 05.08.1996. Against the said judgment and decree Zameer Ahmad, the defendant respondent, and Kalloo and Jumma, defendant-petitioners preferred Civil Appeal 368 of 1998 before the lower appellate Court. During pendency of aforesaid appeal, defendant-appellant No.1 Zameer Ahmad died on 22.06.2005, leaving behind Zubaida and Mohd.Tariq as his heirs and legal representatives. Petitioners claim that substitution application was moved for substitution of their names. On 23.09.2005 Nafeesul Rehman filed objection contending therein that three daughters of the deceased defendant were also required to be impleaded in the appeal besides two sons Zubaida and Mohd. Tariq. On the said objection being raised, the petitioners claim that after acquiring about existence of three daughters of the deceased defendant-appellant No.1, they moved application praying for amendment of substitution application by including the names of three daughters of the deceased-appellant. On 25.05.2009 the said application for amendment in substitution has been rejected. At this juncture present writ petition has been filed.
(2.) SRI Sidharth, learned counsel for the petitioner, contended with vehemence that in the present case lower appellate court has totally misdirected itself in law in not allowing the application, as in absence three daughters of the deceased appellant being impleaded and substituted, the rights of the defendant-petitioners would be adversely affected, and in this background, the judgment and order of the lower appellate court is liable to set aside. After respective arguments have been advanced, factual position which emerges in the present case is that plaintiff-respondent No.2, Nafeesul Rehman son of Habeebulla, instituted original suit No.473 of 1986 before the trial court praying therein for specific performance of contract of sale against defendant-appellants, who claim themselves to be bona fide purchaser without notice during pendency of suit. Said suit was decreed on 05.08.1996 by directing the defendants of the suit to get the sale deed in question executed after accepting the balance payment and in the event of failure, the sale deed would be got executed through court. Against the said judgment and decree Zameer Ahmad, the defendant respondent, and Kalloo and Jumma, defendant-petitioners preferred Civil Appeal 368 of 1998 before the lower appellate Court. During pendency of aforesaid appeal, defendant-appellant No.1 Zameer Ahmad died on 22.06.2005,leaving behind Zubaida and Mohd.Tariq as he heris and legal representatives. Petitioners claim that substitution application was moved for substitution of their names. On 23.09.2005 Nafeesul Rehman filed objection contending therein that three daughters of the deceased defendant are required to be impleaded in the appeal besides two sons Zubaida and Mohd. Tariq. On the said objection being raised, the petitioners claim that after acquiring knowledge about existence of three daughters of the deceased defendant-appellant No.1, they moved application praying for amendment of substitution application by including the names of three daughters of the deceased- appellant. On 25.05.2009 the said application for amendment in substitution has been rejected by mentioning that in case legal heirs of the defendant-appellant are not interested in pursuing the appeal, they cannot be forced to be impleaded and substituted as defendant Nos. 1/1 to 1/5. As far as appellant Nos 1and 2 are concerned, they have got every right to transposed the said incumbents as defendant- respondents in the said appeal. The view taken by the court below cannot be said to be legally unsustainable, inasmuch as it is the choice of the legal heirs of the deceased appellant either to pursue or not to pursue the appeal, and once they are not coming forward, then in this background, the order which has been passed is rightful order and requires no interference. Consequently, the writ petition fails and the same is dismissed.;