BIBHISAN MAHTO Vs. RUDAN MAHTO

JUDGEMENT

(1.) This writ petition has been filed for quashing the order dated 4.8.2009, passed by learned Sub Judge-1st, Godda, in Title Suit No. 45 of 2002, rejecting the application filed by the defendantpetitioner for recording an order of abatement in terms of Order 22 Rule 4 (3) C.P.C.

(2.) It is submitted by Mr. Jha, appearing for the petitioner, that the plaintiff-respondent did not substitute Ahilya Devi, one of the legal heirs of deceased defendant no. 1-Nakul Mahto, for 5 years and therefore the said petition was filed for recording abatement but the same has been rejected wrongly.

(3.) In terms of Order 22 Rule 10A CPC, a duty has been cast on the pleader appearing for a party to the suit to inform the court about the death. There is nothing to show that the counsel appearing on behalf of Ahilya Devi informed the court about the death of Ahilya Devi; or that the plaintiff had knowledge about the death of Ahilya Devi. It may be noted that petitioner is son of Nakul Mahto and Ahilya Devi was one of the heirs of Nakul Mahto. In these circumstances, the court below has rightly rejected the petition filed by the petitioner after hearing the parties on giving cogent reasons.