Bikrama Singh v. Phul Mati Devi

22. Most. Shiv Kumari Devi W/O Shri Chandrika Singh R/O Vill Luhashi, Pargana Kuwadi, P.S.Uchkagaon, Distt-Gopalganj

23. Doma Singh S/O Muneshwar Singh R/O Vill Luhashi, Paragana Kuwadi, P.S.Uchkagaon, Distt-Gopalganj

24. Rikhimuni Singh S/O Munehswar Singh R/O Vill Luhashi, Paragana Kuwadi, P.S.Uchkagaon, Distt-Gopalganj .... .... Respondent/s ====================================================== Patna High Court CWJC No.15600 of 2010 (6) dt.18-01-2012 2 Appearance : For the Petitioner/s : Mr. For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH ORAL ORDER (Per: HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH) 6 18-01-2012 Learned counsel for the petitioner is permitted to make necessary correction in paragraph 3 of the writ application. Heard learned counsel for the parties. In the instant writ application, the petitioner, who is respondent no.1 in the suit, has prayed for setting aside the order dated 06.08.2010 (Annexure-1) passed by Sub-Judge-4, Gopalganj in Title Suit no. 207 of 2002. The plaintiff-respondents filed title suit bearing no. 207 of 2002 for partition of ½ share of the suit property, after appointing a Survey Knowing Pleader Commissioner. During the pendency of the suit, defendant no.6 Ramayan Mishra died and he was substituted by Vinod Kumari., who died on 27.09.2007. The plaintiffs-petitioner filed a petition for substituting the heirs of Vinod Kumari vide Annexure-2. The petitioner, who is defendant no.1 opposed the substitution petition. The trial court vide order dated 23.04.2010 allowed the substitution petition. The petitioner filed an application on 27.07.2010 with a prayer that the notice on substituted heirs as well as substituted service on them be declared as invalid. The trial court by order dated 06.08.2010 rejected the application of petitioner-defendant. The petitioner-defendant no.1 initially moved this Court against order dated 06.08.2010 only. During the pendency of this application, the petitioner filed Patna High Court CWJC No.15600 of 2010 (6) dt.18-01-2012 3 I.A. No.7072 of 2011 challenging the earlier order dated 23.04.2010 by which the substitution petition was allowed. In the facts and circumstances of the case, interlocutory application no.7072 of 2011 is allowed. The issue is whether order dated 23.04.2010 and order dated

06.08.2010 is in accordance with law or not. The petitioner submits that the substitution petition did not carry the complete address rather the notice have gone on the address of Vinod Kumari itself. The plaintiff-respondents is required to give the complete address in view of Order 6 Rule 14 A of C.P.C. Counsel for the plaintiff-respondents submits that in absence of any recorded address of the substituted heirs of Vinod Kumari, they had no other alternative to mention the same address as was of Late Vinod Kumari. He further submits that none of the other parties including the petitioner-defendant provided any other address. He further submits that other relatives of Vinod Kumari, namely her own brothers are defendants in the suit but none of them objected that the address of the substituted heirs of the respondents of Vinod Kumari are not correct. Learned counsel for plaintiffs / respondents submits that the evidence of both the parties had closed and only at the stage of argument with a view to delay the trial, the defendant-petitioner has filed the instant writ application, which submission is controverted by the learned counsel for the petitioner-defendant. It appears that originally there were 11 defendants in the suit. Defendant no. 6 Ramayan Mishra died in the year 2002 and was duly substituted by his legal heirs including Vinod Kumari. Unfortunately Patna High Court CWJC No.15600 of 2010 (6) dt.18-01-2012 4 Vinod Kumari also died. The plaintiff-respondents filed a substitution petition for substituting the names of her heirs on her address, as no recorded address of heirs of Vinod Kumari was available on record. The trial court in the circumstances, allowed the substitution petition and notices were directed to be issued. I find that the trial court also took pre-caution directing publication of substituted service of notice on the substituted heirs. Even at that stage none of the parties came forward to give a different address of the substituted heirs. The substituted service of notice was not challenged. Further more, the defendant no.6 died after the evidence of the parties had closed and the case had reached the stage of argument. In such circumstances, the plea of the defendant-petitioner that notice has not been validly served on the substituted heirs of Vinod Kumari is not acceptable. For the reasons stated above, I do not find any infirmity in the order of the trial court. This application is, accordingly, dismissed. Uday /- (Samarendra Pratap Singh, J)