BISESHWAR LAL AGARWAL Vs. SAHDEO PRASAD SAO

JUDGEMENT

(1.) HEARD learned Counsel for the petitioner.

(2.) THIS application under Article 227 of the Constitution of India is directed against the order dated 28.9.2005 passed by Subordinate Judge II, Dhanbad in Title (Eviction) Suit No. 61 of 1986 whereby the application dated 15.4.2004 filed on behalf of the petitioner No. 1, Biseshwar Lal Agarwal, purported to be under Order VI Rule 17 read with Sections 152 and 153 of the Code of Civil Procedure has been rejected.

(3.) MR . Indirajit Sinha, learned Counsel for the petitioner submitted that since an application under Order VI Rule 17 for adding Smt. Ram Dulari Goyal was allowed, she shall be deemed to be plaintiff in the suit. Merely because her name was not included in the cause title of the plaint, it cannot be said that the decree was not passed in her favour also. I do not find any substance in the submissions of the learned Counsel. In this application, the decree was passed in favour of the sole plaintiff, Biseshwar Lal Agarwal. Respondent preferred appeal impleading the sole plaintiff, Biseshwar Lal Agarwal as respondent. Nowhere in the subsequent proceeding Smt. Rain Dulari Goyal was ever shown as a party. The Court below in the impugned order has quoted the relief portion of the judgment wherein it is clearly mentioned that a modified order for amendment of the plaint was subsequently made but Smt. Ram Dulari Goyal neither was impleaded as plaintiff No. 2 nor filed any vakalatnama nor participated in the hearing of the suit. The trial Court, therefore, held that in such a situation Smt. Ram Dulari Goyal is nonest on the record. Evidently therefore this finding is recorded against Ram Dulari Goyal but no appeal was ever filed challenging the aforesaid finding.