SHIV NARAYAN PASWAN Vs. BANDEY SINGH

JUDGEMENT

(1.) The petitioner is aggrieved of order dated 26.09.2016 passed in Misc. Appeal No.03 of 2010 by which the appellate court has affirmed order dated 03.02.2010 passed in Misc. Case No.06 of 2008; the miscellaneous case was filed for restoration of Title Suit No.21 of 1998.

(2.) Title Suit No.21 of 1998 was instituted by Lakhan Paswan in a representative capacity on behalf of the villagers of the village Pashnaur. During pendency of the suit an application under Order XXII Rule 4 CPC was allowed and the plaintiff was granted one week's time for taking steps in the matter, however, inspite of further opportunities granted, the plaintiff did not take steps in the matter and consequently the suit was dismissed in default. Seeking restoration of the suit to its original file, Misc. Case No.06 of 2008 was filed. The learned trial Judge holding that the plaintiff was negligent dismissed Misc. Case No.06 of 2008. Against this order the plaintiff has preferred Misc. Appeal No.03 of 2010. During pendency of the appeal, the plaintiff died and his son, who is the petitioner, filed an application for his substitution. The appellate court has held that there is no evidence on record which would establish that the plaintiff's son has been authorised by the members of the panchayat to represent the entire village and prosecute Misc. Appeal No.03 of 2010. That being a finding of fact, I am not inclined to interfere with the impugned order dated 26.09.2016 and accordingly the writ petition is dismissed, however, it shall remain open for the villagers of village Pashnaur to prosecute Misc. Appeal No.03 of 2010, subject to the law of limitation.