- (1.) Sri Sri Iswar Buro Shib Thakur, a Hindu deity, represented by four persons described as its shebaits, obtained the present Rule against the order of the learned Munsif, Ist Court, Arambagh, rejecting an application of the said deity for adding the heirs and legal representatives of the deceased proforma defendant no. 8. The said application was made more than a year after the death of the proforma defendant No. 8, who was described in paragraph 4 of the plaint as one of the shebaits of the deity who was not allegedly discharging his duties and who did not agree to join with the other shebaits in instituting the instant suit. The learned Munsif rejected the above application made on behalf of the plaintiffs on the ground that the entire suit had abated by the failure on the part of the plaintiffs to make within time any application for substitution in place of the deceased defendant No. 8.
(2.) Mr. Nirendra Krishna Mitra, learned Advocate for the petitioners, has submitted before me that the suit in question was instituted by the deity itself and the proforma defendant No. 8 was impleaded in the suit to remove any possible objection to the representation of the deity who by its very nature is required to act through its shebaits. Mr. Mitra further submitted that in the instant case Rules 3 and 4, Order 22 of the Code of Civil Procedure have no manner of application because really there was merely devolution of the office held by the proforma defendant No. 8, and, therefore there could be no question of abatement. According to Mr. Mitra in a suit brought on behalf of the deity, when a shebait, who has been impleaded as a proforma defendant dies, at the highest it might be contended that the representation of the deity is not complete until the successor of the deceased defendant is brought on record so that the entire body of shebaits might be on record. Mr. Mitra further contended that in the instant suit no relief was claimed by the plaintiffs against the proforma defendant. There was no issue between the parties to be tried. Therefore, in any event, there could be no question of abatement of the entire suit on the death of the said proforma defendant.
(3.) In my view, the contentions, raised on behalf of the petitioners, should prevail. Therefore, it is not necessary for me to consider the further submission of Mr. Mitra that even after an abatement takes place the Court may under Order 1, Rule 10 of the Code add the heirs of the deceased defendant as parties in the suit.;