Patna High Court - Orders
Mahabir Sah vs Bibi Jubeda Khatoon & Ors on 19 July, 2010
Author: C. M . Prasad
Bench: C. M . Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
MJC No.1064 of 2008
MAHABIR SAH
Versus
BIBI JUBEDA KHATOON & ORS
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9 19.07.2010Perused the Stamp report dated 18th July 2008.
I.A.No. 6115 of 2010 is a petition under Order XXII Rule (4) of the Code of Civil Procedure whereby prayer has been made for deleting the name of O.P.No. 7 Bibi Jaitun in this M.J.C. on the ground that she left for Kolkata and thereafter she did not appear in the Title Suit nor in the Title Appeal which is subject matter of I.A.No. 332 of 1992. This has to be noted that this M.J.C. has been filed for restoration of S.A.No. 332 of 1992. The O.P.No.7 Bibi Jaitun was respondent No.7 in the 2nd Appeal.
Learned counsel for the petitioner-appellant submits that Bibi Jaitun had not filed any written statement in the Title Suit nor she had contested the Title Appeal. Therefore, deletion of her name is prayed in this appeal. Learned counsel admits that during the pendency of the said S.A.No.332 of 1992 O.P.No.7 was alive and she died after dismissal of the said S.A. and during the pendency of some other M.J.C. and, lastly, this M.J.C. for restoration of the same. In view of the fact that the petitioner- appellant did not seek any exemption in the original S.A., I do not feel it proper to record such exemption in this M.J.C. application which is for the purpose of restoration of the said Second Appeal. Such prayer when preferred during the pencdency of the original S.A. is not fit to be allowed in this M.J.C. Such power could be considered only when the 2nd appeal is ordered to be restored in case this M.J.C is allowed.
In such view of the matters, the I.A.No. 6115 of 2010 is rejected. The petitioner-appellant will take steps for substitution of heirs of O.P.No.7 Bibi Jaitun in this M.J.C. within 6 weeks, but subject to the limitation which shall be considered according to law.
List after 6 weeks.
(C. M . Prasad, J.) Jay/