- (1.) TO question correctness of the order dated 19.7.2008 passed by learned Additional Civil Judge (Senior Division) No.1, Chittorgarh, rejecting the application preferred by the petitioner defendant under Order 22 Rule 3 and 5 Code of Civil Procedure, this petition for writ is preferred.
(2.) THE facts necessary to be noticed are that in a suit preferred by one Shri Nanalal for redemption of mortgage and possession of suit property, an application was filed by the defendant petitioner to have better particulars about capacity and authority of the plaintiff to file the suit. By submitting a reply to the application, the plaintiff explained that the suit property is attached with Rundeshwar Mahadev, his personal temple, thus, the suit was filed in capacity of the owner of property. After having particulars in the terms aforesaid the petitioner defendant filed a written statement without disputing authority of the plaintiff to file the suit. On death of plaintiff Shri Nanalal on 8.6.2000, his legal representatives were brought on record on acceptance of an application preferred as per provisions of Order 22 Rule 3 Code of Civil Procedure. To challenge the order passed on the application aforesaid the petitioner preferred a revision petition before this Court with assertion that the mortgaged property belong to temple Rundeshwar Mahadev and Nanalal was trustee of that, therefore, his family members cannot be brought on record as his legal representatives. The revision petition (Smt. Basanti Devi v. Legal Representatives of Nanalal ­ 2003 WLC (Raj.) UC 419) came to be rejected on 12.11.2002 with following observations:- "5. Shri S.L.Jain, learned counsel for the petitioner, has raised the same issue which had been raised before the court below. However, he could not point out that there had been pleading in the written statement to the effect that the Temple to which the property is purported to belong is a public temple nor there is a pleading in the written statement that the suit was not maintainable for non-joinder of necessary party as Devsthan Department of Rajasthan should have been impleaded. In absence of such pleadings, the issues raised by Shri Jain are not sustainable. The issue as to whether the suit could have been filed in an individual capacity by Shri Nana Lal is yet to be decided. Mere allowing the application for substitution of legal representatives would not affect the merit of that issue." After rejection of the revision petition, the petitioner defendant preferred an another application for determination of question as to whether the persons brought on record as legal representatives of deceased plaintiff are his legal representatives or not? The foundation of the application was that the mortgaged property was not a personal property of Nanalal, therefore, his descendants could have not been brought on record as his legal representatives. A prayer was made to have a necessary inquiry as per provisions of Order 22 Rule 5 Code of Civil Procedure. The trial court by order impugned rejected the application, thus, this petition for writ is before this Court.
(3.) THE argument advanced by learned counsel for the petitioner is that in revision petition, that came to be decided on 12.11.2002, it was specifically observed that the issue as to whether the suit could have been in an individual capacity by Shri Nanalal, is yet to be decided and mere allowing of the application for substitution of legal representatives would not effect the merit of that issue, thus, before bringing legal representatives on record this issue requires necessary investigation but the trial court failed to appreciate the same.;