RAJEEV LOCHAN PANDEY Vs. KRISHNA JHA

JUDGEMENT

(1.) Aggrieved of order dated 19.01.2016 passed in Title Suit No. 15 of 2010 by which application seeking striking off the name of defendant no.1 from the suit has been allowed, the petitioner who is defendant no.2 has approached this Court.

(2.) In Title Suit No. 15 of 2010, Shankar Mukherjee has been made defendant no. 1. The suit was instituted for a declaration that the Sale Deed No. 139 dated 14.01.2002 is bogus and a sham paper transaction and thus, not binding on the plaintiff. The sale deed has been executed by the defendant no. 1 in favour of defendant no. 2. In the pending suit an application was filed by the defendant no. 2 informing the court that the defendant no. 1 has died on 05.05.2013. Responding to this application, the plaintiff claims that he filed an application dated 10.03.2015 for a direction upon the learned counsel for the defendant no. 1 to disclose the name of legal heirs of defendant no. 1. It is stated that when name of legal heirs of deceased Shankar Mukherjee-defendant no. 1 was not disclosed, the plaintiff filed an application dated 18.09.2015 praying for striking out the name of defendant no. 1 from the cause-title in the pending suit. This application has been allowed by the impugned order dated 19.01.2016.

(3.) Sri Jai Prakash Jha, the learned Senior counsel for the petitioner contends that once within the period of limitation application for substitution is not preferred for substituting legal heirs and successors of defendant no. 1, the suit in respect of defendant no. 1 shall abate and there should have been an order of the court of abatement of the suit in respect of defendant no. 1, whereas the court has adopted an erroneous procedure whereby name of defendant no. 1 has been struck off from the cause-title.