(1.) THIS is an application in revision against an order passed by the Munsif, 2nd Court, Kishanganj, rejecting the prayer of the petitioner that the suit out of which this application arises be held to have abated and to have become incompetent and consequently for the rejection of the plaint,
(2.) IT appears that the plaintiffs opposite party Nos. 1 to 3 filed Title Suit No. 89 of 1968 in the Court of the Munsif against two firms, M/s, Dhanraj Jaichand Lal. opposite party No. 4 and M/s. Jiwan Ram Jagannath, another firm as defendants. The suit was for eviction of the defendants from a building and for arrears of rent thereof. Written statement was filed on behalf of the firm O. P. No. 4 aforesaid. Thereafter one of the partners of the Firm, M/s. Dhanraj Jaichand Lal, Dhanraj Lunia, died on the 20th May 1969. The plaintiffs then filed a petition on the 12th of August, 1969 stating therein that the manager and partner of the firm aforesaid. Dhanrai Lunia died on the 20th of May 1969 and as such it was necessary to amend the plaint and the same may be amended and the only surviving son Jaichand Lal be added as defendant 1 (A) party. On the very same day the learned Munsif permitted the amendment aforesaid. IT appears that Jaichand Lal had appeared individually in this case and taken steps in the suit before the amendment and even thereafter. In view of the amendment, however, fresh notice was served on him and he again appeared in that capacity. Some time thereafter on the 4th of January, 1971 Jaichand Lal filed a petition saying that the firm had been dissolved much before the institution of the suit and was non-existent and that further Dhanraj Lunia, one of the two partners of the firm being dead and no substitution having been made the suit had become incompetent. He further said that the addition of Jaichand Lal as a party by the amendment of the plaint could not be permitted in law and for the reasons mentioned above the Court should pass an order of abatement and incpmpetency of the suit and reject the plaint. The plaintiffs filed a rejoinder to this application on the 25th of August 1971 wherein they denied the allegation to be false and said that the suit had been properly filed against the defendants-firm under Order 30, Rule 1 of the Code of Civil Procedure and raised certain other points and prayed that the petition of rejoinder dated the 4th of January, 1971 be rejected. The matter was heard by the learned Munsif on the 8th September. 1971 and the next day an order was passed by which the learned Munsif rejected the petition dated the 4th of January. 1971. Hence this application.
(3.) LEARNED counsel has however urged that the order dated the 12th of August. 1969 by which the petitioner was added as a party, ought to be set aside. It has, been pointed out by learned counsel for the opposite party that the petitioner had appeared in the case on the 6th of January, 1969. He was represented on the 12th of August, 1969 the date on which the petition for amendment had been filed. The original1 petition of that date filed by the plaintiffs has been placed before me and It appears therefrom that copy of the aforesaid petition had been given to the defendants' lawyer. The order was passed on that very date. It appears from the subsequent orders in the case that the petitioner appeared on several other dates thereafter as well and took necessary steps in the suit but never raised any objection to the amendment. The learned Munsif has also held that the aforesaid addition of the petitioner as a party was superfluous. It seems, however, that on account of the absence of any prayer to delete the name of the petitioner, the learned Munsif did not pass any such order. The petitioner had ample opportunities to get it done if he so wanted in the Court below. In fact the order of amendment was passed in his very presence and to his knowledge and without any objection by him. The present application being directed against the order passed on the petition dated the 4th of January. 1971, it will not. I think be proper for this Court to entertain the prayer of learned counsel for the petitioner for setting aside the order dated the 12th of August 1969. It would virtually amount to revising an order against which no application has been made before the Court below for a considerable period of time and which is not the subject-matter in the present case on account of the absence of any prayer to that effect in the petition dated the 4th of January. 1971.