SK. SAMIRUDDIN Vs. NAJBOON BIBI

JUDGEMENT

(1.) HEARD learned counsel for the petitioner and the learned counsel for the opposite parties 1 to 6 who have been allowed to be impleaded as parties to the suit, by the impugned order.

(2.) ONE of the defendants has filed this writ petition challenging the order dated 4.8.2011 passed by the learned Civil Judge (Junior Division), Kendrapara in C.S. No.316 of 2001 allowing an application under Order 1, Rule 10 C.P.C. filed by the legal heirs of the deceased plaintiff No.1, i.e. Usman Khan. The orders annexed as Annexure -1 disclose that when the plaintiff No. 1 -Usman Khan expired, an application for substitution under Order 22 was filed. The said application was rejected and thereafter, the legal heirs of the said deceased plaintiff filed an application under Order 1, Rule 10 C.P.C. to be impleaded as parties. The petitioner filed an objection stating that the said petition is not maintainable as the suit has already abated against the deceased plaintiff and, therefore, provisions of Order 1, Rule 10 C.P.C. cannot be made applicable for impleading the legal heirs of the deceased plaintiff as parties. The learned Court below recording that this is a suit for partition and the suit has not been decided on merit by that date and, further, the defendants have not questioned that the petitioners in the application under Order 1, Rule 10 C.P.C. are not the legal heirs of deceased plaintiff Usman Khan, inasmuch as the application under Order 22 for substitution of the legal heirs has been rejected on technical grounds, the provisions of Order 1, Rule 10 C.P.C. is squarely applicable and allowed the said application. Being aggrieved, the defendant has filed the present writ petition.

(3.) IN the case of Durga Charan Parida v. Basant Kumar Parida and others, 40 (1974) CLT 885, this Court considering the said question, held as follows: