- (1.) The present petition has been filed under Article 227 of the Constitution of India for quashing the order dated 4.1.2014 passed by the learned Senior Civil Judge-IV, Palamau at Daltonganj in Title Suit No. 40/2011 (Annexure-5), whereby, the petition filed on behalf of the petitioners under Order XXII, Rule 10 of the Code of Civil Procedure for substitution in place of deceased-plaintiff Nos. 49 and 68 has been rejected, which, according to the learned court below, is not maintainable. Heard the learned counsel for the petitioners and perused the records.
(2.) So far as respondents are concerned, it appears from the record that notice upon respondent Nos. 1, 3 to 27 and 29 has been served validly, but till date, no appearance has been filed on their behalf. Notice upon respondent Nos. 2 and 28 could not be served because of respondent No. 2 does not live on that place and respondent No. 28 died. Therefore, the petitioner is required to take further appropriate steps for the above mentioned two respondents, but it will take some more time and therefore, looking to the controversies involved in this writ petition, this court is of the view that the matter can be disposed of by giving suitable direction to the learned court below to consider the fresh application that may be filed by the petitioners-plaintiffs under Order XXII, Rule 3 of the Code of Civil Procedure. Accordingly, the learned counsel for the petitioners agrees and submits that he will instruct his clients to file an application under appropriate provision of law in Title Suit No. 40/2011 and if that application be moved, the learned court below is required to consider the same in accordance with law.
(3.) In this view of the matter, as such, there is no illegality in the order passed by the learned court below. In fact, the learned court below has also observed in its order that the plaintiff is required to move an application under Order XXII, Rule 3 of the Code of Civil Procedure. Therefore, this application is disposed of with a direction to the learned court below to proceed further for trial as well as to deal with and decide the fresh application, if filed by the petitioners-plaintiffs under Order XXII, Rule 3 of the Code of Civil Procedure or other appropriate provisions as required.;