- (1.) THE petitioner original plaintiff is before this Court aggrieved by order dated 5th August, 2008, passed below Exh.21 in Special Civil Suit No.113 of 2008 instituted in the Court of learned 9th Additional Senior Civil Judge, Vadodara whereby application for substituting the deceased defendant No.1 with her heirs came to be rejected while attributing the knowledge of death of the defendant to the petitioner before institution of the suit.
(2.) IT is noticed that the learned trial Judge has taken pains to pass the impugned order running into as many as 17 pages but has failed to address the appropriate legal issues involved in the suit. The petitioner after learning that defendant No.1 was already dead before filing of the suit, immediately moved an application aforesaid. That the trial court even otherwise had a power to order correction of cause title under Order 1 Rule 10 of the Code of Civil Procedure ( for short CPC ) for doing complete justice to the parties. Moreover, no benefit accrued to the petitioner by suing a dead person. That fact was also not appreciated by the trial court. In fact, on noticing the defective title, the trial court was required to discharge its obligation under Order 1 Rule 10 of the CPC without any application from the petitioner.
(3.) THE learned counsel for the respondents, however, raises a preliminary objection against maintainability of this petition on the ground that the trial court by rejecting the application effectively denied the relief to the petitioner under Order 22 Rule 9 of the CPC of setting aside the abatement. It is submitted that, under Order 43 Rule 1(k) of the CPC, the appeal is contemplated on refusal to set aside the abatement and therefore this petition is not maintainable. 3.1 It is also contended that on the date of the suit the relief against the legal heirs was barred; the suit now sought to be instituted against the legal heirs by the amendment as above will also be barred by limitation, and that by allowing the petitioner to amend the cause title, effectively a time barred suit would be entertained. The learned counsel for the petitioner contended that the application was preferred under Order 1 Rule 10 read with Order 22 Rule 4 of CPC and therefore the petition before this Court was maintainable as no appeal is contemplated against an order under Order 1 Rule 10 read with Order 22 Rule 4 of CPC. He also contended that the suit is yet to be tried on merits and contention whether it is a time barred suit is premature and therefore this petition cannot be dismissed on such ground.;