1. Challenge in his revision petition is made against the order dated 11.12.2009 passed in Misc. (J) case No. 287/08 arising out of Title Suit No. 139 of 2008 in an application under order 1 rule 10 read with section 151 of the Code of Civil Procedure OCPC') seeking striking out the name of the defendant No. 5 from the array of the defendants in the cause title of the suit and impalement of her legal heirs in her place substituting the names of defendant Nos. 5, 6 and 7 in the suit whereby and whereunder the learned trial court allowed the petitioner to strike out the name of the defendant No. 5 from the suit but did not pass any order in regard to impalement of her legal heirs in her place.

2. Heard Mr. M. Dutta, learned counsel appearing for the petitioner. Considering the grievance made, this court seems it fit to dispose it of at the motion stage itself without issuing notice to the opposite parties since the matter relates to adding of parties as defendants in the suit.

3. The brief facts in a nutshell is depicted hereinbelow as follows:

The petitioner herein as plaintiff brought a suit against the defendants numbering 5(five) in total seeking a decree directing the defendants to complete the construction of the flat described in Schedule B of the plaint. But the defendant No. 5 died on 22.5.2005 and the suit is filed against a dead person, but the petitioner had no knowledge about the same and, hence, the application has been filed under order 1, rule 10 read with section 151 of the CPC as indicated above. The suit is now pending in the court of learned Civil Judge No. 2, Kamrup, Guwahati.

4. Admittedly the suit has been filed against a dead person and in the application under order 1, rule 10 of the CPC filed before the learned trial court which is numbered as Misc. (J) case No. 287/08 arising out of title suit No. 139/08, the following relevant averments were made which are quoted hereunder -

"2. That the defendant Nos. 4 and 5 were the landowners where the flat was to be constructed by the defendant No. 1 firm.

3. That pursuant to the filing of the suit when steps were sought to be taken to the plaintiff could learn for the fast time that the defendant No. 5 had expired.

4. That the plaintiff has in the meanwhile learnt that the defendant No. 5 had expired on 22.5.2005 much before the suit was filed. The said defendant had left behind her sons, namely Sri Jhulan Ch. Choudhury, Chan Ch. Choudhury and Tagar Choudhury as her legal heirs, on whom the landed property belonging to the defendant No. 5 had devolved by right of inheritance and who are looking the affairs of her landed properties.

5. That the petitioner has also learnt there is some dispute amongst the sons of defendant No. 5 and the defendant No. 4.

6. That since the defendant No. 5 had expired before filing of the suit, the said defendant number 5 was wrongly impleaded in the suit. As such her name may be struck of from the plaint.

7. That the sons of the defendant No. 5 who are he legal heirs of late Sushama Bose by right of inheritance have inherited her landed properties and are actually looking after the property. Therefore, the opposite party Nos. 5,6 and 7 are necessary parties to the suit. Therefore, they may be allowed to be impleaded as defendant Nos. 5, 6 and 7.

8. That the plaintiff did not know the fact that the defending No. 5 had expired and was under the impassion that she was alive when the suit was filed.

9. That unless Sri Jhulan Ch. Choudhury, Chan Ch. Choudhury and Tagar Choudhury are impleaded as defendants the petitioner/plaintiff would suffer irreparable loss and injury. The said persons are necessary parties to the suit and their presence is vital to tie adjudication of the issues in the suit.

10. That there is no negligence or laches on part of the plaintiff and the plaintiff in spite of the best efforts and due diligence could not ascertain about the fact that the defendant No. 5 had expired.

11. That relief sought for are just and necessary for g

Click Here to Read the rest of this document