BASUDEO JHA Vs. BAIDYA NATH MISHRA

JUDGEMENT

(1.) THE defendant first party of Title Suit No. 131 of 1978 of the court of subordinate Judge, Madhubani are the petitioners. They filed civil revision no. 1593 of 1997 challenging the order dated 28.8.97 passed by the 4th Subordinate Judge, Madhubani in Miscellaneous Case No. 5 of 1987. by which the said Miscellaneous case was allowed and the Title Suit was restored. The said Miscellaneous case under Order 9 Rule 9 CPC had been filed for restoration of the suit which had stood dismissed in default. The Civil Revision was dismissed on 22.10.97 observing that no ground for interference had been made out. It may be mentioned here that on 22.10.97 none had appeared on behalf of the petitioners and the revision was thus dismissed without hearing the counsel. This civil review petition was filed on 17.11.97 taking the plea that on account of the death of plaintiff -applicant no. 12 Jagdish Jha, during the pendency of the Miscellaneous case in the court below, the entire proceeding in the miscellaneous case had abated on account of non - substitution of his heis and therefore, the restoration of the suit was not in accordance with law. It has been stated that after the factum of deal was brought to the notice of the on through an application to hold the miscel laneous case to have abated the plaintiffs filed application for substitution of heirs. The court also fixed the miscel laneous case for hearing in the abate ment matter. It is said that there was! dispute regarding the date of death and reports had been called for from the loci Block Development Officer in view of the conflicting reports submitted by the Panchayat Sewak. It is not necessary 1 go into these aspects of the case. undisputed position that the miscel laneous case was disposed of without passing any order in the abatement mall ter, that is to say, without setting asiiJ the abatement and/or substituting the heirs of deceased Jagdish Jha. '

(2.) IN the above view of the matter, notice of the review petition was issued ti the opposite party on 13.2.98. It woul not be out of place to mention here that notwithstanding the petitioners ' case regarding abatement on account of non substitution of the heirs of deceased jagdish Jha they impleaded not only late Jagdish Jha but also his heirs, namely, widow and children, to avoid any complication in future. Notice thus, went to? the said heirs as well. It is unfortunate that neither they nor any other opposite party has appeared in this case. The review petition, in the circumstances, was taken up for ex parte hearing.

(3.) IN order to find out the effect of the non -substitution of the heirs of the deceased plaintiff Jagdish Jha as to whether it results in abatement of the whole suit or only part of it, I looked into the plaint of the title suit. According to the plaintiffs ' case, the suit lands belong to defendant 2nd and 3rd parties who either settled or sold the lands in favour of the plaintiffs. The plaintiffs are as many as 45 and they claim specific lands by virtue of settlement of purchase. So far as the deceased Jagdish Jha is concerned, he claims to have purchased, along with his brother plaintiff no. 11 Sushil Jha, 1 Bigha and 17 Dhurs of land of plot no. 1060 of Khata no. 134 of Mauja Harlakhi under registered sale deed dated 31.3.64. Prima facie, it thus appears that the interest of the deceased plaintiff along with his brother in the suit land is defined, limited to the extent of the land purchased under the particular suit. Therefore, that being so, the effect of non -substitution would not result in the abatement of the suit as a whole. If the court had allowed the prayer for substitution that would have been end of the matter. Even if it did not, the order of restoration of the suit as a whole cannot be said to be erroneous or without jurisdiction. However, I do not wish to pass final order in the case in the absence of the opposite party particularly, the heirs of deceased plaintiff. In my opinion, it would be appropriate to leave the matter open to be decided by the court below in their presence.