C.P.C. has been designed to facilitate justice.

The second defendant in O.S. No. 249 of 1996 on the file of the Sub-court, Ootacamund is the revision petitioner herein. The first respondent herein has filed the above said O.S. No. 249 of 1996.

2. In the said suit, the fourth defendant, who is the sister of the first respondent herein as well as the revision petitioner was set exparte on 19-11-1992. Thereafter, the fourth defendant died on 04-09-1996, hence the plaintiff/first respondent herein has filed I.A. No. 1039 of 2003 to implead the legal heirs of the deceased fourth defendant as defendants 9 to 11 in the suit. The trial court, after hearing both sides allowed the said application, hence this revision petition.

3. Mr. Srinath Sridevan, learned counsel appearing for the petitioner submits that the trial court failed to note that the suit as against the fourth defendant abates and as such the trial Court ought not to have permitted to implead the legal heirs of the deceased fourth defendant in the absence of an application under Order 22 Rule 4 CPC and prayed for setting aside the impugned order of the trial court.

4. For the sake of convenience, the parties are referred to as arrayed by the Court below. Before the court below, the fourth defendant was set exparte on 19-11-1992 since she did not appear even after receipt of summons from the court below. Issues were framed on 14-02-1997. Subsequently, the first defendant died, his legal heirs were impleaded as defendants 5 to 8 in the suit and necessary amendments were also carried out in the plaint. On 10-04-2000, the case was listed for hearing and at the request of the plaintiff it was adjourned for three times. On 04-09-2000, the plaintiff filed an application for adjournment, which was dismissed and the suit was also dismissed for default. The plaintiff filed I.A. No. 1517 of 2000 for restoration of the suit on 29-09-2000 in which the name of the fourth defendant was also shown. The notice sent in the said interlocutory application to the fourth defendant was returned with an endorsement that the fourth defendant died, which reached the Court on 01-12-2000. The plaintiff failed to take steps to bring the legal heirs of the deceased fourth defendant in spite of several adjournments. The said I.A. No. 1517 of 2000 was allowed and the suit was restored as against the other defendants except fourth defendant. The court below pointed out that there is no abatement order was passed in so far as the fourth defendant is concerned.

5. The trial of the suit was over on 19-09-2003, arguments were heard on 22-09-2003 and the suit was posted for judgment on 29-09-2003. At that time, the plaintiff has filed I.A. No. 1039 of 2003 to implead the legal heirs of the deceased fourth defendant as defendants 9 to 11 in the suit. The argument of the plaintiff before the trial court was that no abatement order as against the fourth defendant has been passed or the death of the fourth defendant was informed to the Court, hence the implead petition under Order I Rule 10 is maintainable, though it is filed belatedly.

6. The trial court held that the suit for partition cannot be dismissed on technical grounds for non-joinder of necessary parties. If the non-joinder is found by the Court or brought to its notice, it can implead necessary parties instead of dismissing the suit by invoking Order I Rule 10 (2) CPC. In support of this contention, the trial court relied on the decision of the Honourable Supreme Court reported in (Bhagwan Swaroop and others vs. Mool Chand and others) AIR 1983 SC 355 and allowed the implead petition filed under Order I Rule 10 on 19-04-2003.

7. Now we look into the provisions of Order I Rule 10 CPC, which runs as follows:-

"10. Suit in name of wrong plaintiff- (1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been ins