IMPORTANT POINT
The main legal point established in the judgment is the mandatory requirement for the court to determine the legal representative of a deceased party when a dispute arises, as per Order 22 Rule 5 of the C.P.C.

JUDGMENT :

1. This is an application for setting aside the order dated 05.02.2018 passed in Title Suit No. 77 of 2005 by learned Sub-Judge -2nd , Purnia whereby and whereunder the Court below has allowed the substitution petition under Order 22, Rule 3 C.P.C. filed by Respondent 1st set and Sapna Kumari has been allowed to be substituted as co-plaintiff additionally in this suit.

2. It has been submitted by the learned counsel for the petitioners that the matter arises out of Title Suit no. 77 of 2005 filed by sole deceased plaintiff namely Jwala Prasad Gupta against respondents 2nd set and 3rd set herein for reliefs that suit property be declared to be belonging to the plaintiff and defendant 1st set has no concern and further it be declared that the decree passed in Eviction Suit No. 24 of 1996 by the court of Additional Munsif, Purnia and the decree passed in the Title Suit No. 134 of 1997 by the Court of Sub Judge 4th, Purnia are wrong, illegal, fraudulent, collusive, void and not binding on the plaintiff and he further submits that defendant 2nd set are tenants and are liable to be evicted from the suit house and to deliver Khas possession of the suit house to the plaintiff.

3. Learned counsel for the petitioners further submits that defendant 1st set appeared in the suit and filed joint written statement on 09.11.2005 and are contesting the suit and prayed for dismissal of the suit. The aforesaid defendants raised various pleas including the plea of non-maintainability of the suit apart from the technical pleas on merit. Defendant 1st set inter-alia amongst other defences, categorically pleaded that the suit property was never constructed either by plaintiff or by his father rather the same along with two other shop rooms, which are under the same roof were constructed by Late Buland Akhtar the husband of defendant no. 1 and father of other defendants.

4. Learned counsel for the petitioners further submits that the defendant 1st set also filed additional written statement against the statement made by the plaintiff in his plaint and inter-alia stated that it is wrong on the part of the plaintiff to say that the decree passed in Eviction Suit No. 24 of 1996 and Title Suit No. 134 of 1997 are quite wrong, illegal, fraudulent, collusive and without any foundation and it was further pleaded that the plaintiff is not entitled to get any relief or reliefs. He further submits that the original sole plaintiff namely Jwala Prasad Gupta died on 27.02.2015 and in his place his sons (petitioners herein) from his wife Sushila Devi have been substituted pursuant to petition dated 25.05.2015 as plaintiffs in the suit vide order dated 19.04.2016 in presence of respondent no. 1 without any objection.

5. It has further been submitted by the learned counsel for the petitioners that on 20.07.2015, the petitioner Sapna Kumari filed a petition under Order 22, Rule 3 C.P.C. and inter-alia stated therein that after the death of his first wife the original plaintiff Jwala Prasad Gupta again got married with the respondent 1st set namely Sapna Kumari on 06.02.2013 and this marriage is duly registered under Bihar Marriage Registration Rules and prayed that Sapna Kumari be substituted as a co-plaintiff in the suit in the capacity of a legal representative of her husband Late Jwala Prasad Gupta who was the sole plaintiff of this suit. However, no prayer for recall of order dated 19.4.2016 was made subsequently. On 10.05.2016 the defendant 1st set/respondent 2nd set filed a rejoinder to the petition dated 20.07.2015 and inter-alia stated that the substitution petition of Sapna Kumari is much belated and the same is fit to be rejected as being time barred. The petitioners-substituted plaintiffs filed rejoinder on 01.06.2016 objecting to the prayer of Sapna Kumari respondent no. 1 herein and prayed for rejection of such prayer.

6. Learned counsel for the petitioners further submits that on 27.06.2016, respondent 1st set Sapna Kumari filed a petition under Se