Decided on November 15,2019

Andiboina Varalaxmi And Others Appellant
Medisetty Sadamma Respondents


- (1.)Heard Sri Y.Sudhakar, learned counsel for petitioners and perused the material available before the Court.
(2.)Plaintiffs in Original Suit No.84 of 2015 on the file of the Court of the X Additional District and Sessions Judge, Visakhapatnam at Anakapalle, are petitioners in the present revision, filed under Article 227 of the Constitution of India. Petitioners herein instituted the said suit for partition. Defendant No.2 one Medisetty Appalanaidu died pending the suit. Petitioners herein filed application vide I.A. No.370 of 2018 in the said suit under the provisions of Order XXII Rule 4 of the Code of Civil Procedure, 1908 (for short, 'CPC') read with Rule 28 of the Civil Rules of Practice, seeking impleadment of legal heirs of deceased defendant No.2 and for consequential amendments. The said application was contested by respondents 1, 3 and 7 by way of filing counter. The learned Additional District and Sessions Judge, by way of order dated 05.03.2019, dismissed the said application. This revision challenges the validity and legal sustainability of the said order.
(3.)According to the learned counsel for the petitioners, the questioned order is highly erroneous, contrary to law and opposed to the very spirit and object of the provisions of Order XXII Rule 1 CPC and sub-rule (1) of Rule 4 of Order XXII CPC. In elaboration, it is submitted by the learned counsel that defendant No.1 is the mother of defendant No.2, and since one of the legal heirs of the deceased defendant No.2 is already on record, the question of abatement of the suit does not arise and there is no necessity to file applications seeking to set aside the abatement, if any, and to condone delay in filing the application to bring the legal representatives of deceased defendant No.2 on record. In support of his submissions and contentions, the learned counsel of the petitioners places reliance on the judgment of the Hon'ble Apex Court in Mahabir Prasad v. Jage Ram and others, 1971 AIR(SC) 742

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