SANJAY KUMAR SINGH Vs. ANIL KUMAR

JUDGEMENT

(1.) Heard learned counsel for the parties.

(2.) This Civil Miscellaneous application is filed under Article 227 of the Constitution of India against the Order dtd. 16/10/2019 passed by learned Sub-Judge XVII in Title Suit No. 161 of 1998 whereby the learned trial Court dismissed the application filed by the petitioner / plaintiff to substitute the legal representatives of the defendant no. 1 who failed to file the written statement and also failed to appear and contest the suit.

(3.) The brief facts of this case are that the original petitioner Mahendra Singh (now represented through legal heirs on his death) is the plaintiff who filed a Title Suit bearing Title Suit No. 161 of 1998 for declaration of title and also prays that the sale deed executed in respect of the suit land may be declared illegal and void and the same is not binding upon the plaintiff. Despite service of notice defendants did not appear and the suit was proceeded ex parte against defendant nos. 1, 2, 3, and 4. However, defendant nos. 3 and 4 appeared and filed their written statement. The ex parte order against them was recalled. Defendant no. 1 despite service of notice through all modes neither appeared nor filed her written statement. The plaintiff came to know about the death of defendant no. 1 on the basis of the application dtd. 16/1/2019 filed by the defendant and affidavit of Kamleshwari Devi dtd. 28/1/2019 filed by defendant no. 2. On knowing the same an application under Order 22 Rule 4 (4) of the Code of Civil Procedure was filed on behalf of the plaintiff for exempting the plaintiff from substituting the legal representatives of defendant no. 1 and also prayed to delete the name of defendant no. 1 from the array of the parties. However, the trial Court dismissed the said application by observing that against the defendant no. 1 ex parte proceeding has been initiated, so proceedings under Order XXII Rule 4 (4) CPC cannot be initiated against the defendant no. 1 and the same is not sustainable in the eye of law.