- (1.)Respondents No.1 and 2/plaintiffs instituted a suit for declaration of title and permanent injunction against deceased defendant-Bhagaiya Bai, in which Bhagaiya Bai made counter-claim against the plaintiffs. Suit filed by respondents No.1 and 2/plaintiffs was dismissed and counter-claim filed by defendant-Bhagaiya Bai was allowed by the judgment dated 4.4.2012.
(2.)Feeling aggrieved against the order dated 4.4.2012, respondents No.1 and 2/plaintiffs preferred an appeal before the First Appellate Court. During pendency of the appeal, Bhagaiya Bai died on 4.2.2014, for which intimation was given by petitioner-Laxmin Bai and ultimately the petitioner filed an application under Order 1 Rule 10 of the CPC for impleading her on the basis of Will executed by Bhagaiya Bai and ultimately that application was withdrawn. Thereafter, the petitioner filed applications under Order 22 Rule 4 and Order 22 Rule 9 of the CPC. Application under Section 5 of the Limitation Act has also been filed. The First Appellate Court inquired the application through the trial Court and on 07.11.2014 the trial Court held that Laxmin Bai is legal heir of deceased Bhagaiya Bai. Thereafter, the First Appellate Court by its order dated 1.8.2015 rejected the applications under Order 22 Rule 9 of the CPC and Section 5 of the Limitation Act and consequently, dismissed the application under Order 22 Rule 4 of the CPC for substitution. Against which, this writ petition under Article 227 of the Constitution of India has been filed by the petitioner.
(3.)Mr.Prafull Bharat, learned counsel appearing for the petitioner, would submit that petitioner has already filed applications under Order 22 Rule 9 of the CPC and Section 5 of the Limitation Act, therefore, the First Appellate Court could not have been rejected the applications holding that the application filed by the petitioner was beyond the period of limitation i.e. after three months and also rejected the application for substitution stating inter-alia that the order passed by the trial Court is perverse and contrary to the record.