DINESH MEHTA,J. - (1.) The present writ petition under Article 227 of the Constitution of India has been preferred, calling in question, the order dated 04.12.2017, passed by the learned Additional District Judge, No.1, Jodhpur Metro (hereinafter referred to as 'the Appellate Court').
(2.) The facts appertain to the present writ petition are a few, which concisely run as under:- 2.1 Dr. Gopikishan Purohit?plaintiff, propositus of respondents Nos.1 to 5, filed a suit against Radhakishan Purohit (petitioner's father). During the pendency of the suit, the defendant Radhakishan passed away and his legal representatives were brought on record. The suit so filed filed by the plaintiff, came to be decreed vide judgment and decree dated 31.01.2009. 2.2 The legal representatives of the deceased defendant filed an appeal against the said judgment and decree. During the pendency of the appeal, respondent in the appeal-the plaintiff (Dr. Gopikishan Purohit) expired, for which an application dated 19.11.2011, under Order XXII Rule 4 of the Code of Civil Procedure came to be filed by the appellant (petitioner herein), praying that legal representatives of Dr. Gopikishan Purohit, be substituted in his place. The petitioner gave names of all the legal representatives of Dr. Gopikishan Purohit, viz., Smt. Vimla Devi, Pankam, Smt. Veena, Smt. Kalpana, Smt. Sadhna and Smt. Vandana, and prayed that they be substituted in place of the deceased respondent. 2.3 Smt. Vimla Devi, wife of Dr. Gopikishan Purohit, filed a reply to the application and asserted that the property in question has vested in her, by virtue of a Will dated 31.05.2006, executed by Dr. Gopikishan Purohit and thus right to sue survived in her, while placing a copy of the Will on record. 2.4 Before the application and the appeal could be decided, on 25.06.2017, Smt. Vimla Devi (respondent No.1/1 in appeal) died too; hence, an application under Order XXII Rule 4 of the Code, came to be filed by the appellant-defendant that name of Smt. Vimla Devi be deleted, as her other heirs were already on record. 2.5 The legal representatives of Smt. Vimla Devi filed a reply to the said application under Order XXII Rule 4 of the Code and contended that as per the covenant of the Will, the property in question, after the death of Smt. Vimla Devi, has devloved in Pankaj Purohit (son of Dr. Gopikishan Purohit), hence, the right to defend the appeal survives in him. The respondent requested the appellate court to make an endorsement of the factum of death of Smt. Vimla Devi and substitute Pankaj Purohit as a respondent. 2.6 Along with the reply aforesaid, affidavit of Pankaj Purohit, so also affidavits of all other legal representatives of Dr. Gopikishan Purohit/Smt. Vimla Devi Purohit were filed, indicating therein that by virtue of Will dated 31.05.2006, executed by their father Dr. Gopikishan Purohit, the property had earlier devolved in Smt. Vimla Devi Purohit and after her death, in Pankaj Purohit and hence, name of Pankaj Purohit be substituted in place of respondents. 2.7 Such being the position, the Appellate Court disposed of the application under Order XXII Rule 4 of the Code and substituted Pankaj Purohit ? respondent No.1 as the respondent and deleted the names of respondents Nos.3 to 6 ( Smt. Veena, Smt. Kalpana, Smt. Sadhna and Smt. Vandana) from the array of respondents.
(3.) Mr. M.R. Singhvi, learned Senior Counsel, oppugning the order dated 04.12.2017, argued that the Appellate Court has fallen into a manifest error of law in substituting Mr. Pankaj Purohit alone as a respondent in the appeal and deleting the names of other legal representatives of Dr. Gopikishan Purohit and Smt. Vimla Devi Purohit.;