- (1.) Notices for final disposal were issued on 05.07.2017, but despite service nobody has appeared on behalf of the respondents.
(2.) The present writ petition arises out of the order dated 01.05.2017, passed by learned Additional Civil Judge and Metropolitan Magistrate No.5, Jodhpur Metropolitan (hereinafter referred to as the 'Trial Court').
(3.) As nobody is there to contest the petition or assist the Court on behalf of the respondents, it was thought appropriate to summon the original record from the Trial Court. Upon perusal of the record the following facts emerge:- 3.1. The plaintiff - Rameshwar Lal, father of the present petitioner filed a suit for recovery of arrears of rent on 27.04.1989. 3.2. On 15.05.1999, an application under Order XXII Rule 4 came to be filed by the plaintiff to bring legal representative of the defendant - Mohan Singh on record, who had passed away on 25.02.1999. 3.3. The said application remained pending for want of service upon the proposed legal representatives of defendant for considerable time. 3.4. Though this Court could not lay hands to the order sheet containing formal order of taking the legal representatives of the defendant on record, but record of proceedings of 15.12.2001 reveals that the Trial Court has noted that legal representatives of the defendant have been taken on record. It is to be noted that amended cause-title filed on 27.11.2001 (with LRs of defendant) is there on record. 3.5. During the pendency of the suit, said original plaintiff - Rameshwar Lal S/o Mukund Lal too had expired on 09.12.2002, hence an application under Order XXII Rule 3 of the Code of Civil Procedure came to be filed by the legal representative of the plaintiff - the present petitioner on 06.01.2003. 3.6. On 24.02.2003, the defendants prayed for and were granted time to file reply to the said application under Order XXII Rule 3 of the Code and the case was posted to 08.04.2003. 3.7. On 08.04.2003 also, the defendants prayed for time and the matter was adjourned to 20.05.2003 for reply/arguments. 3.8. Due to oversight, the said application could neither be pursued by the plaintiff/plaintiff's counsel nor could it be taken up by the Trial Court. 3.9. Be that as it may, the suit came to be decreed by the Trial Court on 17.01.2006 and the judgment as well as decree was prepared in the name of Rameshwar Lal S/o Mukund Lal as decree-holder, though he had expired. 3.10. After passing of the decree, the petitioner found that the judgment and decree has been drawn in the name of his father Rameshwar Lal S/o Mukund Lal, who had expired on 09.12.2002, of course prior to passing of the judgment and decree. The petitioner on enquiry realised that his application for substitution as legal representative remained undecided and he could not be impleaded as plaintiff. 3.11. That being the position, the petitioner moved an application dated 29.01.2007 under Section 151 and 152 of the Code of Civil Procedure and sought correction in the decree incorporating his name as the plaintiff. He indicated the factum of the application dated 06.01.2003, which he had filed under Order XXII Rule 3 of the Code, qua which no objection was ever raised by the defendants. 3.12. The petitioner's said application has however been rejected by the Trial court, vide its order dated 01.05.2017, interalia observing that after passing of the judgment and decree, it has become functus Officio. ;