AGARWAL Vs. ARYA VIDYA SABHA

JUDGEMENT

(1.) IN this civil revision preferred under Section 115 of the Code of Civil Procedure (hereinafter referred to as 'the Code') the applicants have called in question the propriety of the order dated 20.11.98 passed by the learned IXth Civil Judge Class -II, Jabalpur in Civil Suit No. 44 -A/95.

(2.) THE facts as have been unfolded are that the non -applicant No.1, Arya Vidha Sabha, a registered society filed a suit for ejectment of the non -applicant No.2. According to the plaintiff, Shri G.S. Agrawal was the original tenant and the non -applicant No.2. was the sub -tenant. During the pendency of the suit it came to be known to the plaintiff that G.S. Agrawal had died and, accordingly, the plaintiff filed an application under Order 22 Rule 4 of the Code for substitution of his legal heirs. It was objected to by the defendant No.2 as well as by the legal representatives of said G.S. Agrawal on the ground that said G.S. Agrawal had expired on 15.8.92 long before filing of the suit and as the suit had been filed against a dead person the entire proceeding is null and void and the concept of Order 22 Rule 4 is not applicable. The learned trial Judge accepted the contention of the present applicants and rejected the application for substitution. The non -applicant No. 1, thereafter, filed an application for review of the order which met with similar fate. Thereafter, the non -applicant No. 1 filed an application under Order 1 Rule 10(2) of the Code and prayed that the legal heirs of G.S. Agrawal be, added as parties to the suit as they are necessary parties. The said application was objected to by the defendant No.2. It was put forth before the trial Court that once the application to bring the legal representatives of deceased G.S. Agrawal had already been rejected it cannot be allowed under Order 1 Rule 10 of the Code. 'The learned trial Judge did not accept the contentions that the tiling of suit was ab initio void and the legal representatives could not be brought on record under Order 1 Rule 10 of the Code as the application under Order XXII Rule 4 of the Code was rejected earlier. Being of this view he directed the legal representatives of G.S. Agrawal to be brought on record. Feeling aggrieved by the said order the legal representatives have approached this Court in this civil revision.

(3.) 'The moot question that arises for consideration is whether the Court had jurisdiction in the facts of the case to entertain an application under Order 1 Rule 10(2) of the Code after rejecting the prayer under Order XXII Rule 4 of the Code. To appreciate the factual scenario it is apposite to refer to Order XXII Rule 4 of the Code. It reads as under: -