- (1.) THIS is a defendant's revision filed against the order dated 10-9-1996 passed by IV Additional Chief Metropolitan Magistrate (Additional Civil Judge (Senior Division) Kanpur Nagar in Original suit No. 474 of 1993 State Bank of India v. Mishra and Company and others, by means of which the learned court below has imposed a cost of Rs. 500 while accepting the written statement of the defendant-revisionist.
(2.) HEARD the learned counsel for the applicant Sri Anil Tewari and the learned counsel for the opposite party State Bank of India, Sri Satish Chaturvedi. The learned Counsel for the revisionist has contended that the suit in question was instituted against a dead per son, who is a necessary party and, as such, the suit can not be proceeded with further without substituting the legal heirs of the deceased as defendant. The revisionist is one of the defendants. It has not been set tled uptil this stage by the court below as to whether there is common interest of the defendants or separate interest and whether the suit would stand abated against all the defendants or against the deceased only, in the absence of a substitution application by the plaintiff. In the body of the order it has been observed by the learned court below that in case the suit is void against any of the defendants the suit can be decided on the merits and demerits of the case. In my opinion this observation by the court below is redundant at this stage and ought not have been given by the court below at this stage as it is not certain as to whether there is com mon interest of the defendants and what would be the effect in case a suit proceeded against the dead person in case there is com mon interest of the defendants. It may be possible that the learned court below may consider it fit to frame a preliminary issue in this regard and comes to the conclusion to decide that issue first. In the facts and cir cumstances of the case the above part of the finding recorded by the learned court below is set aside. However, rest of the order is maintained as I find no illegality therein. The revision is accordingly disposed of, there shall be no order as to costs. Revision disposed of. .;