The court emphasized judicial discretion under Order I Rule 10(2) to implead necessary parties, prioritizing justice over technicalities and avoiding nullity in proceedings.

JUDGMENT :

SANJAY KUMAR DWIVEDI, J.

Heard Mr. Amit Kr. Das, learned counsel appearing for the petitioner, Mr. Shashank Shekhar, learned counsel appearing for the opposite party Nos.1 and 2 and Mr. Saibal Kr. Laik, learned counsel appearing for the opposite party No.3.

2. Mr. Laik, learned counsel appearing for the opposite party No.3 submits that the opposite party No.3 herein is defendant No.3 in the said suit.

3. This petition has been filed under Article 227 of the Constitution of India for setting aside of the order dated 08.04.2024 passed by learned Civil Judge (Senior Division)-IX, Dhanbad in Original Suit No.365 of 2022 whereby the learned Court has been pleased to allow the application dated 04.03.2024 filed by the plaintiff in Civil Miscellaneous Application No.114 of 2024 under Order I Rule 10(2) read with Section 151 of CIVIL PROCEDURE CODE filed in the said suit.

4. Mr. Das, learned counsel appearing for the petitioner submits that the original suit has been filed by the plaintiff who are the opposite parties herein for declaration of Sale Deed No.6702 dated 15.12.1995 for declaration of right, title and interest on the basis of the said sale deed and also for recovery of possession. He submits that upon notice the defendants have appeared and filed their written statement, who is the petitioner and opposite party No.3 herein. According to him, the plaintiffs were knowing about the death of defendant No.2 in spite of that the suit has been instituted against the dead person and when the petition was filed by the defendants disclosing that the defendant No.2 has left for his heavenly abode the petition under Order 1 Rule 10(2) of CPC has been filed and pursuant to that the learned Court has allowed the same. He submits that the learned Court has wrongly allowed the same and in view of the fact that having the knowledge that fact was suppressed and suit was filed. On this ground, he submits that the said order may kindly be set aside.

5. Mr. Laik, learned counsel appearing for the opposite party No.3 submits that the petitioner and opposite party No.3 are in possession of the suit property.

6. Mr. Shashank Shekhar, learned counsel appearing for the opposite party Nos.1 and 2, who are the plaintiffs, submits that inadvertently that has occurred. He further submits that has also been admitted in paragraph No.15 of the petition of present C.M.P. filed by the petitioner herein and that is said to be a formal defect. He submits that when the fact arose the said petition was filed and the learned Court considering that the legal heirs/successors of the dead defendants are necessary parties has rightly allowed the said petition. He submits that identical was the situation before Hon’ble Supreme Court in the case of Pankajbhai Rameshbhai Zalavadia v. Jethabhai Kalabhai Zalavadiya reported in AIR 2018 Supreme Court 490 SC and he refers to paragraph Nos.14 and 15 which is as under :-

14. In the matter on hand, though the trial court had rightly dismissed the application under Order 22 Rule 4 of the Code as not maintainable at an earlier point of time, in our considered opinion, it needs to be mentioned that the trial Court at that point of time itself could have treated the said application filed under Order 22 Rule 4 of the Code as one filed under Order 1 Rule 10 of the CPC, in order to do justice between the parties. Merely because of the non- mentioning of the correct provision as Order 1 Rule 10 of the Code at the initial stage by the advocate for the plaintiff, the parties should not be made to suffer. It is by now well settled that a mere wrong mention of the provision in the application would not prohibit a party to the litigation from getting justice. Ultimately, the Courts are meant to