Asha Ram and Another vs Inder Lal and Others

Vineet Kothari, J.—Heard learned Counsel for the parties.

This revision petition is filed against the order dated 16.04.2010 passed by the learned trial court whereby the application filed by the Defendant- Asha Ram and Smt. Rameshwari Devi in a suit for partition filed by the Plaintiff- Inderlal S/o Mohanlal was rejected and trial court refused to dismiss the suit as having abated since the Plaintiff-Inderlal failed to bring on record the legal representatives of Respondent No. 2 Umanmal S/o Mohanlal, another brother, whose death was required to be presumed since he was not traceable for last seven years since 1995.

This was so stated in the application filed by the present Petitioners that since Umanmal was not traceable since 1995, last 7 years, therefore, he should be presumed to be dead and his legal heirs having not been brought on record, the suit filed for partition had abated. This application has been rejected by the learned trial court by the impugned order.

During the course of arguments, learned Counsel, Mr. Suresh Shrimali, appearing on behalf of respondents submitted that though the suit would not abate in these circumstances, he has no objection if the daughters of Umanmal, namely, Sharda and Yashoda are taken on record for contesting the said suit for partition.

Having heard learned Counsels for the parties, this Court is of the opinion that in view of submissions made by the learned Counsel for the Respondents, in the said suit, the daughters of said Umanmal may be taken record under Order 22 Rule 4 CPC to contest the suit if they want to so contest and the learned trial court may proceed further in the matter. The suit is stated to be at the final stage and only judgment and decree has to be passed. The stay order dated 10.05.2010 granted by a coordinate bench of this Court shall stand vacated now and the trial court may pronounce its judgment.

As far as contention that suit had abated is concerned, it will be open for the present Petitioners to raise these contentions before the learned trial court if the arguments are not concluded and party aggrieved by the final decision of the suit, will be at liberty to raise their objections further before the appellate court also.

With these observations and liberty, the present revision petition of the defendants is disposed of with no order as to costs.