Court No. - 19
Case :- MATTERS UNDER ARTICLE 227 No. - 1436 of 2018 Petitioner :- Abdul Rahim Respondent :- Adj, Court No.1, Saharanpur And 4 Others Counsel for Petitioner :- Ashok Kumar Singh Bais Hon'ble Manoj Kumar Gupta,J.
A supplementary affidavit has been filed in compliance of the earlier order.
By means of instant petition, the petitioner has challenged the order dated 28.5.2015 passed by the court below in Misc. Case No.41 of 2012, whereby the application for substitution of the heirs of the deceased applicant has been allowed. The order passed by the revisional court dated 9.11.2017 dismissing the revision is also under challenge.
It seems that the suit instituted by Smt. Sheela Rani bearing No.405 of 2002 was dismissed in exercise of power under Order 7 Rule 11 CPC. She filed an application for recall of the said order, which was registered as Misc. Case No.41 of 2012. During its pendency, she died and thereafter, respondents no.3/1 and 3/2 sought substitution in her place on the basis of a Will. The same has been allowed by the trial court by impugned order and the revision filed against the said order, has also been dismissed.
Counsel for the petitioner submitted that the Will is unregistered, consequently, the courts below erred in allowing the substitution application.
It is not disputed before this Court that the suit property is not an agricultural holding. Consequently, there is no bar under law for an unregistered Will being executed in respect of the suit property. This Court, accordingly, does not find any illegality in the order passed by the trial court allowing substitution on the basis of a Will in favour of respondents no.3/1 and 3/2.
It is further submitted by counsel for the petitioner that since the suit was dismissed under Order 7 Rule 11, a recall application seeking recall of the order rejecting the plaint was not maintainable.
In the opinion of the Court, the said plea has to be raised by the petitioner before the court below before which the application is pending. Since the instant petition is directed only against the orders by which substitution application has been allowed and, therefore, this Court is not inclined to go into the question relating the maintainability of the application seeking recall of the order dismissing the suit.
Accordingly, with the aforesaid right reserved in favour of the petitioner, the instant petition is dismissed.
(Manoj Kumar Gupta, J) Order Date :- 30.3.2018 SL