NAND LAL MODAK Vs. JAI BAHADUR SINGH

JUDGEMENT

(1.) The petitioners, who are defendants in Title Suit No. 55 of 2005, are aggrieved of order dated 28.11.2015 passed in Misc. Case No. 8 of 2014 by which the suit has been restored to its original file.

(2.) Contention raised on behalf of the petitioners is that without substitution of one of the defendants namely, Gopal Bihari Modak who had died in the mean-time, the suit could not have been restored.

(3.) Title Suit No. 55 of 2005 was dismissed on 06.05.2014 and the application for restoration of the suit was filed on 05.06.2014. The application for restoration was thus within the period of 30 days as provided under Order XI Rule 4 CPC. The defendant-Gopal Bihari Modak has died on 21.07.2015, however, the trial judge has observed that inspite of notices issued to the defendants no one appeared and finally the suit proceeded ex-parte. Evidently, the plaintiffs could not have substituted the defendant-Gopal Bihari Modak through his surviving legal heirs and successors. Moreover, after the plaintiffs have substantially laid their evidence, by granting one more opportunity to the plaintiffs to lead further evidence the trial judge has in my opinion not committed any error of jurisdiction.