R.S. Chauhan, J. - (1.) THE petitioners -plaintiffs have challenged the order dated 4.3.1998 passed by the Civil Judge (Jr. Div.) & Judicial Magistrate (West), Ajmer whereby the learned Magistrate had accepted the application moved by the respondent -defendant under Order 22, Rule 3(2) read with Section 151 CPC and had declared the suit to have abated.
(2.) THE brief facts of the case are that the petitioners alongwith Mr. Kanwar Lal Asawa, Mrs. Gaind Kanwar, Mr. Ganga Prasad and Mrs. Ramsukhi Bai had filed a suit for eviction against the respondent No. 1, Mr. Shridhar, in respect of premises bearing No. AMC 2/590, Ram Nagar, Pushkar Road, Ajmer, on the ground of default in payment. of rent. According to the petitioners and other plaintiffs, the property belonged to a trust, and they were the trustees. The property in dispute was rented out to Mr. Shridhar @ Rs. 41/ - per month. However, Mr. Shridhar had not paid the rented amount since 17.3.1976. Mr. Shridhar filed his written statement and denied the averments made in the plaint. In turn, he claimed that he had bought the property in dispute from one Noratmal for a consideration of Rs. 12,000/ - by an agreement to sale dated 5.6.1973. During pendency of trial, Mrs. Gaind Kanwar, Mr. Ganga Prasad and Mrs. Ramsukhi Bai expired. Therefore, the respondent filed an application under Order 22, Rule 3 (2) read with Section 151 CPC. According to the respondent, although three of the plaintiffs, mentioned above, had expired, but their legal representatives were not taken on record. Therefore, the civil suit had abated. The petitioners replied to the said application. They pointed out that the legal representative of Mrs. Gaind Kanwar was already on record as plaintiff No. 2, the legal representatives of Mrs. Ramsukhi Bai were already on record as plaintiffs No. 4, 5 and 7. Moreover, as the property in dispute belong to a trust and they were the trustees, even if one of the trustees has expired, the suit could not abate. However, after hearing both the parties, by order dated 4.3.1998, the learned Magistrate accepted the said application and declared the suit as abated.
(3.) AGGRIEVED by the order dated 4.3.1998, the petitioners filed an appeal before the Additional District Judge No. 1, Ajmer. By order dated 26.5.2005, the learned Judge allowed the appeal and set aside the order dated 4.3.1998. Since the respondent was aggrieved by the said order, he filed a revision petition before this court, namely SB Civil Revision Petition No. 83/2005. By order dated 23.10.2008, this court allowed the revision petition and held that the appeal filed before the learned Judge was not maintainable. Therefore, this court set aside the order dated 26.5.2005. But this court gave a liberty to the petitioners to challenge the order dated 4.3.1998 before this court under the legal remedies available to them. Hence, this petition before this court.;