Hanuman Choudhary v. Udai Chand Chaudhary

.... .... Respondent/s ====================================================== CORAM: HONOURABLE MR. JUSTICE VIJAYENDRA NATH ORAL ORDER (Per: HONOURABLE MR. JUSTICE VIJAYENDRA NATH) 3 01-02-2012 Heard learned counsel appearing for the petitioner. By the impugned order the learned Court below has allowed the prayer of the plaintiff for deleting the name of the defendant No. 1 from the plaint. The learned counsel appearing on behalf of the petitioner has submitted that no prayer for substitution had been made by the plaintiff for substituting the heirs of the deceased-defendant No. 1. It has been further contended that in absence of a petition field under Order 22 Rule 4(4) the learned Court below could not have jurisdiction to delete the name of the deceased- defendant No. 1. It has been further submitted that defendant No. 2 who is purchaser from the defendant No. 1 cannot represent and defend the right of the deceased-defendant No.

1 which he claimed as a bataidar over the suit land and such a right can be Patna High Court C.R. No.1401 of 2009 (3) dt.01-02-2012 defended only by his legal heirs. The learned counsel has also submitted by placing the averments made in the plaint that no relief has been sought for by the plaintiff against the sale deed standing in favour of the defendant No. 2. From perusal of the impugned order, it appears that no petition was filed by the plaintiff either praying for substituting the heirs of the deceased-defendant No. 1 or for deleting his name by taking resort to by the provision of Order 22 Rule 4(4) C.P.C. It appears that a petition was filed by the defendant No. 2 praying for the abatement of the suit for want of substitution within time of the heirs and legal representatives of the deceased-defendant No. 1. In response to that petition the plaintiff has filed an objection petition and therein he has made a prayer for expunging the name of the deceased-defendant No.

1. It is well settled that the plaintiff is dominus lites in the suit and he cannot be compelled to bring the heirs of the deceased defendant No. 1 on record. In view of the fact that the defendant No. 2 is a purchaser of the interest of the defendant No. 1 in the suit land, there would be no abatement of the suit so far as it relates to the interest acquired by the defendant No. 2 from the defendant No.1. The plaintiff who has sought permission for deletion of the name of the defendant No. 1 from Patna High Court C.R. No.1401 of 2009 (3) dt.01-02-2012 the plaint will have to bear the consequences of such deletion if any, in accordance with law. In this view of the matter, the learned Court below has committed no error of jurisdiction or illegality in passing of the impugned order. This revision application is, accordingly, dismissed. Saif/- (V. Nath, J.)