SYED BALAL AHSAN Vs. WASTANA RUBI

JUDGEMENT

(1.) The plaintiff appellant has in this appeal challenged the order dated 14-11-1973 passed by the Court below rejecting the plaintiff's application for substitution and holding that the suit has abated in its entirety.

(2.) The suit was filed in 1966 for declaration of the plaintiff's title and recovery of possession in regard to certain properties and was decreed ex parte on 7-4-1971. The defendant No. 1 thereafter died on 18-4-1971 and two applications under Order 9. Rule 13, Civil P. C. for setting aside the ex parte decree were filed, one by the heirs of defendant No. 1 which was registered as Misc. Case No. 9 of 1971 and another by the other defendants which was numbered as Misc. Case No. 8 of 1971. On the 25th Aug., 1972, Misc. Case No. 8 of 1971 was allowed and the title suit was restored subject to payment of costs. On the 4th Sept., 1972, it was mentioned in the order-sheet that cost as directed was deposited and the suit was formally restored. Misc. Case No. 9 of 1971 filed by the heirs of deceased defendant No. 1 was taken up for hearing on 5-3-1973 when the applicants filed an application stating that since the suit had been restored, their miscellaneous application had become infructuous and should be dismissed as such. The prayer was allowed and Misc. Case No. 9 of 1971 was accordingly dismissed. The names of the applicants in Misc. Case No. 9 of 1971, that is, the heirs of the defendant No. T, were not formally entered in the plaint and the name of defendant No. 1 continued as before. On the 24th March 1973, the plaintiff filed an application praying for expunging the name of defendant No. 1 and adding his heirs as parties in the plaint. It is said in para 4 of the application that the persons sought to be mentioned in the plaint had already been substituted.

(3.) The defendants opposed the application on the ground that the plaintiff was under a duty to substitute the heirs of the deceased defendant immediately after restoration of the suit,