GONENDRA DAS LASKAR Vs. MONORANJAN DAS

JUDGEMENT

(1.) In this application under Article 227 of the Constitution of India, petitioner has challenged the order dated 19.12.2011 passed by the learned Munsiff No. 1, Cachar at Silchar in Misc.(J) Case No.115 of 2010 arising out of Title Suit No. 58 of 2010 thereby rejecting the application filed by the plaintiff for impleading legal heirs of deceased defendant No. 4 in the suit.

(2.) The petitioner herein as plaintiff instituted Title Suit No. 58 of 2010 in the court of learned Munsiff No.1, Cachar at Silchar against one Monoranjan Das as principal defendant and as many as 14 defendants therein praying for declaration of his right, title and interest and for prohibitory injunction restraining the defendants. After service of summons in the suit, plaintiff as petitioner filed application under Order VI Rule 17 of the Code of Civil Procedure for deleting the name of proforma defendant No. 4 and for impleading his legal heirs in his place on the ground that at the time of institution of the suit, the said defendant ­No.4 had already expired and so wrongly his name was incorporated in the body of the plaint as proforma defendant No. 4. According to plaintiff, he came to know about death of defendant No. 4 only after service report by the process server disclosed the same. The defendant No. 1 submitted objection and contested the application under Order VI Rule 17 of the CPC along with the written statement. The learned trial court after hearing both the sides rejected the application by the impugned order dated 19.12.2011 holding that provision of order XXII Rule 4 CPC would apply only if a defendant dies during continuance of the civil suit. In the present case, the defendant No. 4 had died prior to institution of the suit and so Order XXII Rule -4 would not apply . But even after holding so, learned trial court held that a decree passed against a dead man would be nullity and so suit instituted against a dead person could not be corrected by amending of the plaint. The learned trial court also noticed that under Order 1 Rule 10, necessary parties can be joined to a suit but without arriving at any finding that legal heirs of defendant No.4 are not necessary parties in the suit, rejected the application. After rejecting this application, suit of the plaintiff was also dismissed without holding as to whether because of death of proforma defendant No. 4, the suit was not maintainable. The order passed in misc. case has been brought under challenge in the present revision petition. Dismissal of the suit by a separate order passed in the suit on the same date ought to have been challenged before the learned first appellate court. But the petitioner may be because of wrong advice given by the learned counsel, challenged this order in the present revision petition by a supplementary prayer.

(3.) I have heard Mr. B Malakar, learned counsel for the petitioner and Mr. S Das, learned counsel for the respondent/opposite party No.1.