Kamal Nain vs Som Parkash and Others

L.N. Mittal, J.—This revision petition under Article 227 of the Constitution of India has been instituted by Kamal Nain legal representative of Parkash Kaur defendant No. 6 since deceased assailing order dated 8.9.2008, Annexure P/1 passed by learned Additional Civil Judge (Senior Division), Samana. The trial court vide order Annexure P/1 disposed of two applications. One application was for impleading legal representatives of Jagdish Ram plaintiff No. 2 since deceased. The said application has been allowed by the trial court by way of impugned order. Another application was by defendants No. 8 to 19 for transposing them as plaintiffs and for amendment of plaint. The said application has been dismissed by the trial court vide impugned order. Petitioner herein is aggrieved only by allowing of application for impleading LRs of plaintiff No. 2.

I have heard learned Counsel for the parties and perused the case file.

At the outset in application Annexure P/2 for impleading LRs of plaintiff No. 2 which has been allowed by the trial court it has been mentioned that defendants No. 13 to 18 (including LRs of defendant No. 15 since deceased) were the only legal heirs of plaintiff No. 2 since deceased but the trial court wrongly mentioned defendants No. 8 to 19 as LRs of plaintiff No. 2, probably because defendants No. 8 to 19 had moved application for transposing them as plaintiffs. Consequently, impugned order to the extent of ordering impleadment of defendants No. 8 to 19 as LRs of plaintiff No. 2 is liable to be modified so as to implead defendants No. 13 to 18 only as LRs of plaintiff No. 2 as sought vide application Annexure P/2.

Except as aforesaid, there is no illegality in the impugned order passed by the trial court. Learned Counsel for the petitioner contended that defendants No. 8 to 19 have made counter claim against defendant No. 6 (represented by the petitioner) and some other defendants and the question whether counter claim can be made against the co-defendants has been referred to Division Bench in CR No. 4753 of 2005 and same question is involved in CR No. 504 of 2009 arising out of the instant revision petition. It is contended that on disposal of the instant revision petition, interim order staying passing of final order by the trial court shall stand vacated and thereupon CR No. 504 of 2009 would become infructuous. However, merely on this ground, the instant revision petition cannot be kept pending. The petitioner who has also preferred CR No. 504 of 2009 may seek appropriate interim order in the said revision for which some time may be granted by continuing interim order of this Court.

For the reasons aforesaid, the instant revision petition is allowed partly and the impugned order Annexure P/1 passed by the trial court is modified to the extent that defendants No. 13 to 18 only (including LRs of defendant No. 15 already impleaded in the trial court) shall be impleaded as LRs of Jagdish Ram plaintiff No. 2 instead of defendants No. 8 to 19 as ordered by the trial court.

Interim order staying pronouncement of final order by the trial court shall continue for two weeks from today.