Patna High Court - Orders
Hari Banshtiwari And Ors vs Smt Savitri Devi And Ors on 17 October, 2016
Author: Jitendra Mohan Sharma
Bench: Jitendra Mohan Sharma
IN THE HIGH COURT OF JUDICATURE AT PATNA
First Appeal No.12 of 1990
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Hari Bansh Tiwari & Ors
.... .... Appellant/s
Versus
Smt Savitri Devi & Ors
.... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. Sunil Srivastava
Mr. K. K. Tiwary
For the Respondent/s : Mr. Jitendra Nath
Mr. A.Rahman
Mr. Farooque Murazzan
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CORAM: HONOURABLE MR. JUSTICE JITENDRA MOHAN
SHARMA
ORAL ORDER
20 17-10-2016I.A. No. 7640 of 2016.
The instant interlocutory application has been filed on behalf of the appellants under Order XXII Rule 4 of the C.P.C. praying therein to allow this application and the legal heirs and representatives of respondent no.9, namely, Jagdish Rai as described in paragraph-1 of the application may be directed to be substituted in place of the deceased respondent no.9 after expunging his name.
The heirs are major but the petition has been filed after expiry of time and for that I.A. No. 7699 of 2016 has been filed under section 5 of the Indian Limitation Act for condoning the delay in filing the substitution petition. Copy has already been Patna High Court FA No.12 of 1990 (20) dt.17-10-2016 2/3 served but no counter affidavit or reply has been filed to that petition.
Heard both the learned counsels.
In I.A. No. 7699 of 2016 sufficient cause has been shown for not filing the substitution petition within time and as such the delay in filing the substitution petition is hereby condoned and the abatement, if any, is also hereby set aside. Let the name of respondent no. 9, namely, Jagdish Rai be deleted and in his place all the legal heirs and representatives as described in paragraph-1 of the petition be substituted in place of the deceased respondent no.9 and accordingly both the I.As. are hereby allowed.
I.A. No. 8054 of 2016.
This is an application filed on behalf of the appellants under Order XXII Rule 4 of the C.P.C. praying therein to expunge the name of respondent no. 3 (i), namely, Sudhist Narayan Missir from the record as his three sons, the legal heirs and representatives, are already on the record, as mentioned in paragraph-2 of the said petition. This petition has also been filed after expiry of the time. As the legal heirs are already on record and as such question of abatement does not arise.
In the result, the name of respondent no. 3 (i), namely, Patna High Court FA No.12 of 1990 (20) dt.17-10-2016 3/3 Sudhist Narayan Missir is directed to be expunged from the memo of appeal. Accordingly, this I.A. is also hereby allowed.
The leaned counsel for the appellants is directed to take steps for service of appeal notice on the substituted heirs of the deceased respondent no. 9 by both the processes, i.e. under ordinary process as well as registered cover with A/D within four weeks, failing which necessary order will be passed.
(Jitendra Mohan Sharma, J) Abhay/-
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