TAZABANNISA & ORS. Vs. SADARUDDIN AHMED & ORS.

JUDGEMENT

(1.) Whether a plea of nonjoinder falls within the scope of Order 6, Rule 5 of Code of Civil Procedure 1908 (hereinafter 'C.P.C.') is the sole question for determination in this petition. The petitioners were plaintiffs in a suit filed in the court of Munsiff against the order passed by the sub-divisional officer as a perfect partition case. As some of the recorded owners were dead at the time of filing of the suit, their legal representatives were made proforma defendants. The main defendants, being defendant Nos. 1 to 3, filed written statement wherein one of the pleas taken was that the suit was bad for non-joinder of all the heirs of the recorded owners. On the aforesaid pleading in the written statement, an issue was also framed - Whether the suit is bad for non-joinder of all the heirs of the recorded owners.

(2.) The plaintiffs thereupon filed a petition under Order 6, Rule 5 of the Code of Civil Procedure praying for a direction to the main defendants to supply the names and addresses of the heirs of the deceased recorded owners who according to them had not been joined as parties. The petition was objected to by the defendants. The learned Munsiff by order dated 26-4-1982 dismissed the petition on the ground, inter alia, that the plea of non-joinder did not fall within the scope of Order. 6, Rules 4 or 5 of Civil Procedure Code. The aforesaid order has been challenged in the present petition.

(3.) Mr. P.K. Goswami, learned Counsel for the petitioners submitted that the learned Munsiff misinterpreted Order 6, Rule 5 of Code of Civil Procedure and committed jurisdictional error in rejecting the petition. I have considered the submission of the learned Counsel and perused the order passed by the learned Munsiff. Rule 5 of the Order 6 of the Code of Civil Procedure reads as follows :