ARJUN SINGH Vs. SUDAMIA DEVI

JUDGEMENT

(1.) This Civil revision application was filed on 12-3-1986, by one Maharajo Kuar who, after her death was substituted by opposite party No. 10, Arjun Singh. The order under challenge dated 23-1-1986 is such by which an earlier order, dated 13-11-1984, confirming the report of the Advocate Commissioner, submitted at the final decree stage of a partition suit has been recalled at the request of defendants 4 to 10, who filed a petition dated 12-4-1985 alleging that the Pleader Commissioner was appointed without any notice to them. It further appears from the case column of the certified copy of the impugned order that the application for supplying certified copy was made on 5-1-1986 and on 29-1-1686, the certified copy of the impugned order was made ready and also supplied.

(2.) When hearing of this civil revision commenced Sri Sudhir Chandra Ghose, learned senior counsel for some of the opposite parties raised a perliminary objection to the effect that plaintiff No. 2 and defendant Nos. 4 (a), 7 and 9 not having been imp leaded as parties at the time of filing of the civil revision application or within 90 days of the impugned order, the same has become final and cannot be set aside, more so when no written application was filed for imp leading them as parties to this civil revision application along with a separate application under Section 5 of the Limitation Act. Sri. T. K. Jha, learned senior counsel appearing for some other opposite parties also supported the same stand. They further contended that under the Rules framed by this Court, an application should be necessarily supported by an affidavit. They did not cite any decision of any High Court to support their proposition. Sri K. D. Chatterji, learned Senior Counsel for the petitioner, on the other hand, contended that the aforementioned persons having been permitted to be added as parties by Order No. 11, dated 19-9-1986, passed by this Court with notice to them as well as other parties and the civil revision application having been admitted later on by order No. 23 dated 15-4-1987, after hearing them/and/or affording opportunities to them, there is no substance in the preliminary objection and it should be overruled. He also drew my attention to the daily cause list dated 19th September, 1986, from which it appears that this case was listed under the hearing 'To be Mentioned', on a slip filed by the learned counsel for the petitioner before Hon'ble B. P. Jha, J., as he then was, with a note for addition of parties and showing M/s Chitranjan Sinha, Kundan Bahadur Singh, S. K. P. Siaha, Maya Sinha and Sriprakash Srivastava, Advocates for the opposite parties. It further appears from the record that on that very date, following order was passed by his Lordship :

(3.) Sri Chatterji further pointed out that the aforementioned left out persons were then added as opposite parties 11 to 14 respectively, out of whom, opposite party No. 11 had appeared through Mrs. Seema Ali Khan. Advocate, opposite party No. 13 appeared through Sriprakash Srivastava and opposite party No. 14 appeared through Sri Kundan Bahadur Singh and that by an order dated 18th March, 1986, notices were issued to the other side, asking them to show cause as to why this civil revision should not be admitted and after hearing learned counsels for the parties, by an order dated 15-4-1987, this civil revision application was admitted and notice was directed to be issued 10 the non-appearing opposite parties and then registered notice was again sent to opposite party No. 12 for her appearance and service on her was treated to be valid under the provisions of Order V, Rule 19(a) of the Code of Civil Procedure, who however has not appeared.