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ARUN KUMAR JHA
Asha Devi daughter of Late Laxman Paswan – Appellant
Versus
Daulatiya Kunwar, daughter of Basropan Ram – Respondent
JUDGMENT :
Arun Kumar Jha, J.
Heard learned counsel for the petitioner.
2. Despite opportunity, no one is present on behalf of the respondents.
3. The present petition has been filed under Article 227 of the Constitution of India against the order dated 22.10.2016 passed by learned Sub Judge-IV, Ara in Misc. Case No. 33 of 2010 whereby and whereunder the substitution petition filed by petitioner for substituting the heirs/legal representatives of deceased Gauri Shankar Ram has been rejected.
4. Learned counsel for the petitioner submits that the mother of the petitioner filed a suit for partition vide Title Partition Suit No. 462 of 2002 before the Court of learned Sub Judge-Ist, Ara for partition of half share in joint family property with further prayer that survey entry in the name of defendant nos. 1 & 2 be declared wrong and incorrect. During pendency of the title partition suit, the original plaintiff (mother of the petitioner) died on 26.12.2009 and the petitioner filed a petition for her substitution in place of her mother and vide order dated 17.09.2010, substitution petition was allowed. However, due to mistake of office, name of the petitioner could not be brought on record.
The court affirmed that a party should not be denied the opportunity to prosecute their case based on technicalities, emphasizing the importance of justice in legal proceedings.
Merely because the evidence of respondent/defendant and Prabhakar Rao (PW-2) was not repeated all over again, it cannot be held that the appellant/ plaintiff could be non-suited on this ground.
In partition suits, the principle of transposition allows for the substitution of legal heirs even if some parties have died, provided the title is not in dispute, and a decree passed against decease....
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 court emphasized a justice-oriented interpretation of procedural laws, allowing substitution of legal heirs even in cases of certain delays without mandating separate applications for abatement.
Delay of 27 days in filing substitution petition was justified to ensure proper adjudication.
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