RAM GOPAL SAH Vs. DHIRENDRA NATH

JUDGEMENT

(1.) One Shiva Narayan Sah alias Shivanandan Sah instituted Title Suit No. 47 of 1978, in the Court of Subordinate Judge, Dumka, for eviction from a house of Dhirendranath Dey, who was impleaded as the sole defendant in that suit. It appears that on 18-3-1979 the plaintiff Shivnandan Sah died, and, thereafter, Ramgopal Sah, who is the petitioner in this Court filed an application for being substituted in place of the original plaintiff alleging that he was his son and sole heir and the petitioner was substituted as plaintiff in place of original plaintiff Shivanandan Sah. Thereafter, on 5-7-1979 Mst. Bimli Devi, who is opposite party No. 2 to the application in this Court, filed a petition under Order 22 Rule 2 of the Code of Civil Procedure praying for being substituted in place of original plaintiff on the allegation that she was the widow and sole surviving heir of the original plaintiff. Subsequently, she filed a petition under Section 5 of the Limitation Act for condoning the delay in filing the application and she prayed that she should be substituted in place of the original plaintiff after setting aside the abatement. The substituted plaintiff filed a rejoinder to that application denying that Mst. Bimli Devi, opposite party No. 2 to the application in this Court, was the widow of the original plaintiff and as such she was the sole heir and legal representative of the original plaintiff. By his order dated 1-9-1979, the learned Subordinate Judge in seisin of the case dismissed the application for substitution on the ground that no sufficient cause had been made out for setting aside the abatement or for condoning the delay in filing the application; and that, therefore, the application for substitution was barred by limitation. No finding was given by the learned Subordinate Judge on the question whether or not opposite party No. 2 was the widow of the original plaintiff.

(2.) Subsequently on 4-9-1979, opposite party No. 2 filed an application under Order 1 Rule 10 of the Code of Civil Procedure praying for being added as a co-plaintiff on the ground that she was the widow of the original plaintiff. This application was opposed but by his order dated 26-9-1979, the learned Subordinate Judge held that as the application for substitution was dismissed not on merits but on the ground of limitation the application by Most. Bimli Devi could be entertained and holding that there were sufficient materials on record to show that Most. Bimli Devi was the widow of deceased Sheonarayan Sha directed that Bimli Devi be added as plaintiff No. 2. The person originally substituted in place of original plaintiff has come up to this Court in revision against the aforesaid order.

(3.) Shri S.B. Sanyal, the learned Advocate appearing for the petitioner at first raised a number of contentions but ultimately he abandoned all contentions except one, namely, that the court below acted illegally and with material irregularity in adding Most. Bimli Devi as co-plaintiff when her right to the property, which was the subject -matter of suit, was seriously contested by the plaintiff. In my opinion, this contention is correct and must prevail. A Similar question came up before the Bombay High Court in the case of Baya-jabai Ganpat v. Keval Rambhau (AIR 1953 Bom. 202) and Chagla, C. J. delivering the judgment of the Bombay High Court held that a party is added as a co-plaintiff when the plaintiff does not dispute the right of the co-plaintiff to the decree which might be passed; and that wheel there is a direct conflict between the plaintiff and the person who claimed to be added as a plaintiff, if the application for being added as party be allowed he should be added as a co-defendant not as a co-plaintiff. Chagla, C. J., accordingly, in revision, set aside the order of the court below adding the person whose right to the property in suit was contested by the plaintiff as a co-plaintiff, giving liberty to that person, if so advised, to apply to the court below to be made a party-defendant to the suit.