S. Chandrashekhar, J. - (1.) Aggrieved by order dated 5.5.2014 in Title Suit No. 114 of 2009 whereby, application for substitution of the petitioner in place of defendant No. 3 has been rejected and order dated 14.11.2014 whereby, application under Order I Rule 10 C.P.C. has been dismissed, the present writ petition has been filed. The petitioner claiming himself elder brother of one Lakhan Lal Sharma filed application dated 19.12.2013 in Title Suit No. 114 of 2009 for his substitution in place of his brother namely, Lakhan Lal Sharma. The said Lakhan Lal Sharma was defendant No. 3 in Title Suit No. 114 of 2009.
(2.) The suit was filed by one Mahabir Lodi for declaration of his right, title and interest over the suit property and for a declaration that the Record of Rights published in 1995 and signed on 8.1.1996 has not affected his right, title and interest over the suit property. A further declaration that agreement dated 19.12.1935 purported to have been executed by Sumar Lodi in favour of Jodhan Sharma was forged, fabricated and manufactured document, was also sought by the plaintiff. The plaintiff asserted that he entrusted the suit land to defendant No. 3 namely, Lakhan Lal Sharma on the understanding that both parties would share the profit equally. However, since March, 2008 the defendant No. 3 stopped paying the profit from the suit land. A proceeding under Sec. 144 Cr.P.C. ended in a rule against the plaintiff and the revision against the said order also stood dismissed. The defendant No. 3 namely, Lakhan Lal Sharma died on 7.7.2013. The petitioner asserted that he being the Class -II legal heir of defendant No. 3 came in possession over the suit land. Application under Order XXII Rule 4 C.P.C. has been dismissed only on the ground that the suit abated against defendant No. 3 after three months, automatically. However, I find that the trial court overlooked the fact that it was for the plaintiff to move an application for substitution of defendant No. 3. The application filed by the petitioner under Order XXII Rule 4 C.P.C. could not have been dismissed on a technical plea that the abatement has to be set aside first and thereafter only the legal heirs of defendant No. 3 can be substituted. The trial court has recorded a finding that the petitioner is undoubtedly legal representative of the deceased defendant No. 3. The application under Order I Rule 10 C.P.C. has been dismissed on the ground that previously application under Order XXII Rule 4 C.P.C. stood dismissed and the said order has become final. From the facts disclosed in the present proceeding, I am of the opinion that the trial court adopted an erroneous procedure to decide application under Order XXII Rule 4 C.P.C. On account of a technical mistake the claim of the legal representative of the deceased defendant cannot be rejected.
(3.) The impugned order dated 5.5.2014 suffers from serious infirmity in law and therefore, it is set aside. Consequently, application dated 19.12.2013 filed by petitioner is allowed and the petitioner is substituted in place of defendant No. 3. Further adjudication on sustainability of order dated 14.11.2014 is thus not required. The writ petition stands allowed.;