Alok Sharma, J. - (1.) THIS civil misc. appeal has been filed against the order dated 14.09.2006, passed by the Additional District & Sessions Judge, Hindaun City, Karauli by which the application filed by the plaintiffs -appellants (hereinafter 'the plaintiffs') under Order 22 Rule 9 CPC for setting aside the abatement of their appeal was dismissed.
(2.) THE facts of the case are that the plaintiff Jagan along with five others, all the legal heirs of his deceased brother Mawasi, filed a suit for cancellation of a will dated 19.02.1994 executed by one Krishna their nephew/cousin, who expired on 04.03.1994. It was stated that the will dated 19.02.1994 executed in favour of one Raghuveer Singh pertained to the ancestral property of which the plaintiffs were in cultivatory possession thereof by virtue of their nephew/cousin, Krishna not having any male heir. It was stated that the revenue entries in the name of Krishna were fraudulently obtained. The said suit however on consideration of written statement filed and evidence on record was dismissed by the trial court vide order dated 20.02.1999. Aggrieved, the plaintiffs filed a civil regular first appeal before the Court of Additional District & Session Judge, Hindaun city, Karauli, which was registered as appeal No. 9/1999. That it appears that Jagan expired -on 18.09.1999 during the pendency of the appeal. No steps were taken to bring his legal representatives on record until an application moved on 18.12.2004 inter alia praying that the abatement of the appeal qua Jagan be set aside and his LRs be impleaded. An application under Section 5 of the Limitation Act was also filed. The reason proffered for the delay in filing of the application for setting aside the abatement under Order 22 Rule 9 CPC as also application under Section 5 of the Limitation Act was that the LRs of Jagan had been out of station and worked at Delhi and Ahmedabad making a living. Vide order dated 14.09.2006, the application filed by the plaintiffs before the appellate Court for setting aside the abatement of the appeal was dismissed. However, by the same order, the LRs of defendant -respondent Smt. Sugari, wife of Krishna, in the appeal, were taken on record as prayed. Hence this appeal.
(3.) MR . Ajay Shukla, appearing for the plaintiff i.e. LRs of deceased plaintiff Jagan has submitted that the impugned order dated 14.09.2006, passed by the lower appellate court is wholly arbitrary and illegal and even though good grounds had been advanced relating to the illiteracy and the poverty of LRs of Jagan and their sojourn in Delhi and Ahmedabad to eek out a living, the said grounds were arbitrarily overlooked. He submits that the appeal is presently being agitated by the LRs of Mawasi and consequently in the event the plaintiffs, now the appellants in this appeal, were to be impleaded as LRs of Jagan, no prejudice would be caused to the defendants in the suit, the respondents before the lower appellate court as also herein in this appeal. It has been submitted that the impugned order dated 14.09.2006 is also arbitrary inasmuch as even while the LRs of defendant in the suit Sugari were impleaded in spite of an equivalent delay of about five years in the appeal before the lower appellate court, the same indulgence was not granted to the appellants herein as LRs of the plaintiff Jagan before the lower appellate court for delay of about the same period.;