RAJESHWARI SINGH Vs. LAKHRAJO KUNWAR

JUDGEMENT

(1.) Defendant judgment-debtors' petition is for setting aside an order passed by the 4th Additional Subordinate Judge, Sasaram, allowing an application for amendment of the plaint and the decree sought for by the plaintiff decree-holder.

(2.) The amendment sought for is for expunction of the name of plaintiff No. 2 from the plaint as well as from the decree and to substitute the name of the deceased-plaintiffs wife Jabdharo Kuer, both in the plaint as well as in the decree.

(3.) For the purpose of this petition facts in detail are not necessary. Suffice it to say that on 13-6-1981 during the pendency of the suit plaintiff No. 2 died. Within 30 days therefrom, i.e., 10-7-1981, a petition was filed in the suit itself to expunge the name of plaintiff No. 2 and to substitute the name of his wife Jabdharo Kuer. This substitution petition was supported by an affidavit. The order sheet No. 83 dt. 10-7-1981 of the trial Court noticed the filing of this petition as well as the prayer made. The last sentence of the order reads "Prarthana Patra Sanchalit Ho". It appears thereafter the Court did not pass any formal order and the matter remained dormant. The suit thereafter was disposed of followed by a decree. On 15-4-1983, defendants filed an application under Order 9, Rule 13 of the Civil P.C. for setting aside of the decree and while the said proceeding was pending an application for amendment was filed by the plaintiff decree-holder on 17-8-1983 seeking the relief of expunging the name of the deceased plaintiff, both from the plaint and the decree and in his place for the entry of the name of his wife. This is assailed by the defendants. The Court below after consideration of the respective cases of the parties allowed the prayer of the plaintiff by observing : So it was not the mistake and omission of the party rather it was mistake and omission of the Court who did not dispose of this petition before taking up the suit