GIRDHARI Vs. LALMAN MAHTO

JUDGEMENT

(1.) Heard learned Counsel for both the parties.

(2.) This Misc. Appeal has been preferred under Order XLIII Rule I (u) of the Code of Civil Procedure against the order dated 29.3.1993 passed by 5th Additional Sessions Judge, Giridih in Title Appeal No. 129/88,. whereby and where under the order of dismissal recorded on the point of maintainability of the suit was set aside by allowing the petitioner filed by the plaintiff-appellant in that case for amendment of the plaint by adding Deputy Commissioner, Giridih as party-defendant and the case was remanded to the court below for disposal on merit.

(3.) A suit was filed being Title Suit No. 105/87 before the Court of Munsif, Giridih by the respondents in this appeal as plaintiff for recovery of the possession. There being a specific provisions under the C.N.T. Act for adjudication of such nature of cases in presence of the Deputy Commissioner. Objections were raised in the written Statement filed by the defendants-appellants, but it appears that the Deputy Commissioner was not made a party-defendant in the suit. Then after framing of issues in the suit, the issue of maintainability was taken up by the learned Munsif as a preliminary issue and for non adding of the Deputy Commissioner, Giridih as defendant in the suit, learned Munsif dismissed the suit as being not maintainable. Against the order of dismissal, title Appeal No. 29/88 was preferred by the plaintiffs before the Court of 5th Additional District Judge, Giridih. During the pendency of the appeal, a petition was filed by the plaintiffs-appellants for amendments of the plaint by adding Deputy Commissioner, Giridih as party-dependent. After hearing both the parties, that petition was allowed and in consequence of it, the dismissal order recorded by the learned Munsif towards maintainability of the suit was set aside and the whole suit was sent back on remand to the learned Munsif for disposal according to the law on merits. This has been challenged in the present appeal before this Court by the defendants-appellants.