Amitav K. Gupta, J. - (1.) This revision is directed against the order dated 18.04.2013, passed by Additional Munsif, Palamau at Daltonganj, in Title Suit no.32 of 2002, whereby the court below had allowed the substitution petition of deceased defendant no.1 (a).
(2.) The plaintiff instituted the suit for declaration of his right, title and interest over the suit property. Learned counsel has assailed the impugned order on the ground that, it would be evident from the petition dated 26.06.2008, filed by the plaintiff that he was aware about the death of defendant no.1, namely Ramautar Sao, who died on 14.05.2008, leaving behind the legal heirs despite this, the plaintiff did not take steps for substitution of the legal heirs. That the plaintiff filed a petition for substitution on 23.09.2008, under Rule 4 and 9 of Order 22 read with Section 151 C.P.C., and thereafter, the defendants had filed a rejoinder stating that the substitution petition has been filed deliberately for delaying the trial as the suit had abated. They asserted that the name of legal heirs are bogus and fictitious. The court below allowed the substitution petition, vide order dated 29.07.2010, substituting a dead person without holding an inquiry as required under Rule 5ORDER22 C.P.C. That summon was issued against the substituted legal heir who had pre-deceased defendant no.1 as per the process server report that defendant no.1(a) namely, Awadhesh Kumar Soni died on 01.05.2005. It is submitted that the court below should have held an inquiry that the substituted legal heir of defendant no.1 (a) had predeceased his father i.e. the original defendant no.1, namely, Ramautar Saw and necessary action should have been taken against the plaintiff for furnishing false information on affidavit. That the court below should have recalled the order dated 29.07.2010, but, without following the required procedure, the court below vide order dated 29.08.2011, directed the plaintiff to implead the substituted heir of deceased defendant no.1(a). That on 24.08.2012, the plaintiff by suppressing the material facts as well as the order dated 29.08.2011, filed a petition for substitution of legal heirs and representatives of deceased respondent no.1(a), who had predeceased his father. That a rejoinder was filed by the defendants on 24.08.2012, but, the court below without setting aside the abatement allowed the petition for substitution of legal heirs along with the petition under Section 5 of the Limitation Act. On the above grounds, it is submitted that the learned trial court has committed grave error in law by not recalling the order dated 29.07.2010 and 29.08.2011 and allowed the substitution petition without holding an inquiry or by recalling the order despite the facts brought to the notice of the court.
(3.) Learned counsel in support of his contention has relied on the decision in the case of Ram Kishun Ojha v. Ram Dulari Kuer & Anr. reported in AIR 1937 Patna 530 , the decision in the case of Doddappa Maritammappa Basaput & Anr. v. Erappa Mudakappa Navalli & Ors. reported in AIR 1982 Karnataka 191 and the decision in the case of Sitaram Beura v. Kishore Beura & Ors. reported in AIR 1977 Orissa 65 . It is submitted by the counsel that it has been held that in the case of Ram Kishun Ojha (supra) that it is not sufficient for the judge to act (under Section 5 C.P.C) as he did by merely substituting any person in preference to another and that order could be made only after inquiry having been entered into, the result of which would have acted as res judicata. That the order for substitution passed under Order 22 C.P.C without noticing the parties could be recalled and question of substitution could be reopened. The application was under Order 22, Rule 3 C.P.C and was with respect to the death of the plaintiff. In the decision of the Karnataka High Court, it has been held that the date of limitation commences from the death of the deceased and not on the knowledge provided under section 10A of Order 22 C.P.C.;