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Judgment
Bankim N. Mehta, J.—The petitioners have filed this revision application u/s 115 of the Code of Civil Procedure, 1908 and challenged the order passed by the learned Civil Judge (JD), Jetpur below Exh-36 in Regular Civil Suit No. 286 of 2002 on 12.2.2004 rejecting the application for joining them as party in the pending suit.
One Suleman Usman Radiowala, - father of the petitioners filed Regular Civil Suit No. 108 of 1997 in the Court of Civil Judge (SD), Gondal for declaration and injunction. The suit was transferred to the Court of Civil Judge (JD), Jetpur and was renumbered as Regular Civil Suit No. 286 of 2002. Pending the suit, plaintiff Suleman Usman Radiowala died on 25.9.2002. The petitioners made an application Exh-36 to the Court to join them as party - plaintiffs claiming their right on the basis of a Will dated 28.10.1997 allegedly executed in their favour by deceased Suleman Usman Radiowala. The application was contested by the original defendant on the ground that the petitioners - original applicants are not heirs of the deceased plaintiff and as they are residing in Pakistan, they cannot acquire property in India and therefore, the application is required to be rejected.
After hearing learned advocates for the parties, the Court rejected the application by the impugned order. Being aggrieved by the said decision, the petitioners have approached this Court.
I have heard learned advocate Mr. Nanavati for Mr. Thacker for the petitioners and learned advocate Ms. Kachchhi for Mr. Bavishi for the respondent.
It appears that the petitioners claimed that they have acquired a right in respect of the suit property by virtue of a Will allegedly executed by the deceased plaintiff in their favour. Under Order 22, on the death of a plaintiff, suit shall not abate if the right to suit survives. In the instant case, the petitioners have claimed their right by virtue of a Will. The learned trial Judge while deciding the application, has gone into the right of the petitioners in respect of the suit property. Even, the learned Judge has also gone into the details and legality of the petitioners'' right as heirs of the deceased plaintiff without affording any opportunity to the petitioners to prove their case. It is settled proposition that on account of death of a party, person, claiming his right to continue with the proceedings, is required to be permitted to continue with the proceedings and legality of his claim can be decided at the time of trial. The learned trial Judge has, by impugned order, sealed the fate of the proceedings without giving opportunity to the petitioners to substantiate their case. Therefore, in my view, the learned trial Judge has committed error in not exercising the jurisdiction vested in him. Therefore, the impugned order is required to be set aside. However, it is made clear that the respondent is at liberty to raise all the legal contentions which have been taken in this application before the trial Court.
In view of above, the revision application succeeds. The impugned order passed by the learned Civil Judge (JD), Jetpur below Exh-36 in Regular Civil Suit No. 286 of 2002 on 12.2.2004 is hereby set aside and the petitioners are ordered to be joined as party plaintiffs in Regular Civil Suit No. 286 of 2002. The respondent - original defendant is at liberty to file additional written statement to the amended plaint and the trial shall proceed further in accordance with law. Rule is made absolute with no order as to costs. Interim relief, if any, stands vacated forthwith.