Heard Mr. T. Roy, the learned counsel for the appellants and also heard Mr. RL Yadav, the learned counsel for the respondents No.1 & 2. None appears on call for the proforma respondents. The name of respondent No.3 was already struck off by the order dated 04.12.2015.

2. This regular first appeal is directed against the judgment and decree dated 25.08.2000 passed by the learned Civil Judge, No.2, Kamrup, Guwahati in Money Suit No.325/2018 thereby dismissing the suit of the appellants/plaintiffs.

3. As per the original plaint, the plaintiff No.1 was M/s R.R. Mazumdar and the plaintiff No.2 was Sri Ranjit Ranjan Mazumdar, the proprietor of plaintiff No.1 concern. The defendant No.1, namely, M/s Zenith Pharmaceuticals, which was a partnership concern of the original defendants No.2 & 3 had availed a loan from the plaintiff No.1, which was not repaid. Therefore, by the notice dated 07.10.1998, plaintiffs demanded a sum of Rs.5,50,100/- with interest @ 20.75% from the original defendants No. 1,2 and 3. Thereafter, the suit was filed for recovery of the said amount. The suit was numbered as Money Suit No.325/1998.

4. The plaintiff No.2 died on 29.06.2001 during the pendency of the suit and thereafter, the appellant herein, who are the legal representatives of the deceased-plaintiff No.2 filed a substitution petition being Petition No.2118 dated 20.12.2001. As the defendants did not file any objection, the learned trial court vide order dated 20.01.2002 allowed the substitution and directed that amended plaint to be filed on 26.02.2012. The amended plaint was filed on 30.04.2002 and the learned trial court directed the defendants to file their additional written statement. However, without any specific order from the learned trial court, the name of the Firm (M/s R.R. Mazumdar) was deleted/dropped by the substituted plaintiffs No. 1(a) to 1(d). In the amended plaint, which was filed on 30.04.2002, the name of the plaintiff No.1 was struck off and the present appellants’ names were shown at Serial Nos. 1(a) to 1(d) and the suit was proceeded accordingly without the firm (M/s R.R. Mazumdar), as a plaintiff in the suit.

5. In the trial, PW.1 tendered his affidavit on 20.07.2006, in which it was mentioned that the plaintiff No.1 (M/s R.R. Mazumdar) was the proprietorship concern of plaintiffs No. 1(a) to 1(d) as the legal heirs of plaintiff No.2 after the death of plaintiff No.2. Further, it has been stated therein that the plaintiff No.1 is proprietorship concern of plaintiff No.2.

6. As stated earlier, in the amended plaint, the firm (M/s R.R. Mazumdar) was not a party. It would be pertinent to record herein that as per the trial court record, the suit was dismissed on 23.11.2004. It appears that the suit was restored by the order dated 23.06.2005, but before the suit was restored, no notice before restoration was issued on the defendants No.1, 2 and 3. Therefore, when the evidence on affidavit by PW.1 was filed, he was not cross-examined by the contesting defendants No.1, 2 and 3 and the suit was heard ex-parte against them.

7. In course of trial, on the basis of pleadings of both sides, issues were framed on 16.11.2005–

(i) whether the plaintiff is entitled to a decree as prayed for?

and

(ii) whether the defendant No.5 has been impleaded unnecessarily in the suit?.

8. In respect of issue No.1, the learned trial court arrived at a finding that in the original plaint, the plaintiff No.1 was arrayed as M/s R.R. Mazumdar, but in the amended plaint, there was no mention of the proprietorship concern i.e., M/s R.R. Mazumdar. Therefore, the amended plaint filed by the substituted plaintiffs on 30.04.2002, was found to be defective and by holding that the court cannot grant relief to the plaintiff on such defective pleadings, the suit filed through amended plaint on 30.04.2002 was not found maintainable in its form and issue No.1 was decided against the plaintiffs.

9. The proforma defendant No.5 (the State Bank of India), who had fi