- (1.) HEARD Sri H.R. Mishra, S.K. Mishra, Advocate for the appellant and Sri Rajesh Rai for the respondent.
(2.) THIS appeal is listed in the Additional Cause List in the heading of 'Admission'. Respondents 2 and 3 have put in appearance and filed counter affidavit and an application for vacation of the interim order dated 7.4.2011. Since the suit was dismissed on the ground that the plaintiff appellant has not made necessary amendment/substituted the heirs of the defendant respondent 1, although substitution application has been allowed on 14.1.2011. As such, instead of deciding the stay vacation application, the appeal is decided finally with the consent of the parties. This is plaintiff's appeal from the order dated 15.3.2011 by which the suit has been dismissed as abated on the ground of not bringing the legal heirs of the sole defendant on record in pursuance of the order dated 14.1.2011, allowing the substitution application. The plaintiff filed suit no. 1185/2010 for permanent injunction restraining the defendant from interfering in his possession over the property in dispute. In this suit, the defendant appeared and filed written statement on 30.11.2010. In the meantime, the sole defendant died on 16.12.2010. The plaintiff moved an application for substitution of the heirs of the defendant on 21.12.2010. The substitution application was allowed on 14.1.2011.
(3.) IN compliance of the order dated 14.1.2011, the plaintiff was required to incorporate necessary amendment in the plaint bringing the legal heirs of the sole defendant on record. The limitation for incorporating necessary amendment is 14 days under Order VI Rule 18 CPC. It appears that due to ignorance, the counsel for the plaintiff appellant could not incorporate the necessary amendment. within time. In the meantime, the plaintiff filed an application on 27.1.2011 for grant of time for making necessary amendment in the plaint incorporating/substituting the legal heirs of the defendant. The case was thereafter listed on 1.2.2011. On that day, the Presiding Officer was on leave and the case was adjourned and 28.2.2011 was fixed. On 28.2.2011, there was a resolution of the Advocate's Association for strike. It appears that in the absence of counsel for the appellant, his application was allowed and two days and no more time was granted for incorporating necessary amendment and next date was fixed as 9.3.2011.;