NAVRANG TIWARY Vs. USHA DEVI

JUDGEMENT

(1.) Aggrieved by order dated 13.12.2013 in Misc. (Civil) Appeal No. 10 of 2012 in Partition Suit No. 54 of 1979, the petitioner has approached this Court. The learned counsel appearing for the petitioner has submitted that though it was known to the plaintiff No. 2 that her mother as well as the original defendants have died long back, she filed the application seeking deletion of the name of plaintiff No. 1 and substitution of defendants in the pending Partition Suit No. 54 of 1979 only on 25.1.2012 which was grossly barred by limitation. Though, a supplementary case record was opened, the learned District Judge on an erroneous presumption that no supplementary case record was opened at the Garhwa Judgeship, interfered with the order dated 18.7.2012 passed by Sub-Judge-IV in Partition Suit No. 54 of 1979. It is further submitted that it appears from the record of the Court of Sub-Judge, Palamau at Daltonganj that Partition Suit No. 54 of 1979 continued in the same Court as recently as in the year, 2010 and the death of defendants was known to the substituted plaintiff however, she did not take proper steps in the matter.

(2.) Heard the learned counsel appearing for the petitioner and considered the materials brought on record.

(3.) It is not denied that the plaintiff No. 2 is the daughter of plaintiff No. 1 who died during the pendency of the Partition Suit and she filed an application under Order XXII, Rule 4 of the C.P.C. on 25.1.2012 along with an application under Section 5 of the Limitation Act. The surviving plaintiff No. 2 was the only legal heir of plaintiff No. 1 is not disputed. The application was filed for deleting the name of plaintiff No. 1 and an application was also filed for substituting the legal heirs of defendant Nos. 1, 2 and 3. From the impugned order dated 13.12.2013 it appears that in the year, 1982 the Judgeship at Garhwa became functional, as a new district at Garhwa was created however, the record of the Partition Suit remained trace-less till 21.11.2011. After the record was traced, it was again wrongly sent to Latehar and finally, it was brought at Garhwa on 22.11.2011 from the Civil Court, Latehar. The notices were issued to the plaintiff No. 2 and defendants and after receiving the information, the plaintiff No. 2 filed a petition on 25.1.2012. Since it is not disputed that the plaintiff No. 2 is the sole legal heir of plaintiff No. 1, the property in question would devolve upon plaintiff No. 2 and thus, the right to sue survives. Thus, the plaintiff No. 2 has a right in law to pursue the suit, I further find that an application under Section 5 of the Limitation Act was filed seeking condonation of delay in filing application dated 25.1.2012. While dealing with the application under Section 5 of the Limitation Act, the learned appellate court has exercised its discretion and found, on facts, sufficient cause for condoning the delay. The High Court in exercise of its power under Article 227, normally, would not interfere with the exercise of jurisdiction by the inferior courts. The order in an application under Section 5 of the Limitation Act cannot be said to take away a valuable legal right of the petitioner. In view of the fact that the substituted plaintiff has a right to pursue the suit, objection taken by the petitioner in the present writ petition is not sustainable.