MANBHUL ORAON Vs. GANGADHAR ORAON

JUDGEMENT

(1.) THE revisionists are the plaintiffs, who have impugned the order dated 9.5.96 passed in TS. No. 56/93, by and under which the learned court below has refused the prayer of the petitioners to be added as plaintiffs in place of deceased -plaintiffs no. 13.

(2.) THE suit was filed for declaration of plaintiffs' title, confirmation of possession and for permanent injunction in respect of the suit lands. Uncontroverted tact is that the plaintiff no. 13, Baidyanath Oraon died some time in July, 1994. No step for substitution of the heirs and legal representatives of the said plaintiff was ever taken either by the petitioners or by any party to the suit, as a result of which partial abatement of suit to the extent of share of said Baidyanath Oraon was passed by the court below. This order was not challenged by the petitioners before the higher court. On 11.3.96, however, a petition under Order 1, rule 10 CPC was filed on behalf of the petitioners praying therein to add the names of petitioners as parties to the suit in place of deceased -Baidyanath Oraon. Subsequently, on 21.3.96 another petition was filed by the petitioners under Order 6, rule 17 CPC praying therein to amend the plaint. Opposite parties - defendants filed a rejoinder to the aforesaid petitions on 11.4.96. By the impugned order, the learned court below has refused the prayer of the petitioners for adding them as parties under Order 1 rule 10, inter alia, holding that the provisions under Order 1, rule 10 cannot be invoked by the petitioners under the circumstances.

(3.) MR . Laik, learned counsel appearing on behalf of the petitioners, vehemently urged that only because instead of filing any petition under Order 22 Rule 4, the petitioners filed petition under Order 1 Rule 10, the court below could not have dismissed the same as not maintainable. According to the learned counsel, wrong levelling of a petition cannot be said to be a defect going to the root of jurisdiction of the trial court to add the petitioners as plaintiffs in place of late Baidyanath Oraon. In support of his contention, Mr. Laik has relied on a decision in the case of Bhagwan Swaroop & ors. vs. Mool Chand & ors., reported in AIR 1983 SC 355.