LAWS(CAL)-2012-8-88

SURATAN NESA Vs. NUR NEHAR BEWA

Decided On August 24, 2012
SURATAN NESA Appellant
V/S
NUR NEHAR BEWA Respondents

JUDGEMENT

(1.) THIS revisional application is taken up for hearing. None appeared on behalf of the opposite party/defendant on call. Heard the learned Counsel for the petitioner. This revisional application is directed against the order passed by Civil Judge, Senior Division, Malda vide order No. 28 dated 4.8.2010 in a partition suit No. 313 of 2006. The case of the revisionist/ petitioner is that a partition suit has been filed by the petitioners before the learned Civil Judge, Senior Division, Malda, which was registered as partition suit No. 313 of 2006. The opposite parties were contesting the same. During the pendency of the suit the plaintiff No. 3 namely, Md. Ibrahim died on 15.8.2003 and the heirs of deceased plaintiff No. 3 filed application under Order XXVIII Rule 3 CPC on 12.11.2008. The said petition for substitution was heard by the learned Court below and was pleased to allow the application under Order XXII Rule 3 by directing the petitioners be substituted as plaintiff No. 3(ka) to (3)(tha) in place of deceased plaintiff No. 3. The learned Court below also directed to file the amended plaint within the date fixed. In connection with the said partition suit one Misc. case was also instituted being No. 118 of 2007 by the plaintiffs' and in the said Misc. case learned Court below also allow the substitution application by directing the petitioners to file amended plaint and office to amend the cause title. The partition suit being No. 313 of 2006 again came up for hearing on 4.8.2012. One application for taking steps on behalf of the petitioner plaintiffs' was filed and same was rejected on the grounds that prayer for time for filing amended plaint is made after laps of more than 14 days and the petitioner's did not take any step inspite of direction of the court. As a result the substitution petition dated 12.11.2008 which was initially allowed was rejected and the suit be abated.

(2.) LEARNED Counsel for the petitioner submitted that the originally the application for substitution was filed on behalf of the plaintiff on the death of plaintiff No. 3 under Order XXII, Rule 3. The petition was filed very much within the time and the learned Court below did not consider the provision of law as laid down under Order XXII Rule 1 and 2 as well as 3. In the partition suit there are several plaintiffs and right to sue survives.

(3.) THAT the order dated 4.8.2010 passed by learned Civil Judge, Senior Division, Malda in P.S. No. 313 of 2006 is hereby set aside she petitioner/ plaintiffs are directed to file amended plaint in terms of order passed in the said suit on 27.7.2009 within fifteen days from the date of order in default the instant order of this court will stand recalled.