Law:

Section:

Civil Procedure Code (V of 1908)---.--- ---.---O. XXII, R. 4(1) & XXIII, R. 1---.---Death of parties---.---Status/right of legal heirs of deceased plaintiff to be determined by Trial Court after framing of an issue, and not by the appellate court---.---Applicant/ legal heir of the deceased plaintiff had filed application under O. XXII, R. 4(1), C.P.C., which, along with the suit, was dismissed by the Trial Court on the ground that the same should have been filed under O. XXII, R. 3, C.P.C. and that the same had been filed beyond a period of 90 days---.---Appellate court had maintained said orders---.---Applicant contended that the suit could have been dismissed along with the application, as the right to sue had survived in favour of the legal representatives of the plaintiff---.---Validity---.---Appellate court had failed to examine the provisions of O. XXIII, R. 1, C.P.C.; therefore, impugned order of dismissal of the suit itself was against the provisions of law---.---Appellate court had dismissed the appeal against the impugned orders while determining the status of the applicant as legal heir of the deceased plaintiff as her next friend; whereas, the question as to filing of the application by the applicant as legal heir of the plaintiff should have been left to be decided by the Trial Court, and the question, whether the applicant had no locus standi to become party on the death of the actual plaintiff in the suit as legal heir, should have been decided on merits after framing an issue by the Trial Court---.---Dismissal of the suit was, therefore, result of incorrect application of the law---.---Present revision petition had been pending for about 13 years due to lack of interest on part of the applicant; however, the High Court, accepting the petition subject to cost, remanded the case to the Trial Court for decision afresh on merits and in line with the specific directions issued for disposal of the suit---.---Revision petition was allowed accordingly. THIS JUDGMENT DELIVERED BY: NAZAR AKBAR, JUSTICE:---.------ This Revision application is directed against the concurrent finding of the courts below. First the learned trial Court while dismissing an…

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