ORAL JUDGMENT

Date : 18-03-2025 Heard learned counsel for the parties.

2. The present petition has been filed against the order dated 09.11.2016 passed in Partition Suit No. 89 of 2009 by learned Sub Judge-VI, Bettiah, West Champaran, whereby and whereunder the petition filed by the petitioners under Order 6 Rule 17 and Order 1 Rule 10 of the Code of Civil Procedure (hereinafter in short ‘the Code’) has been dismissed.

3. Learned counsel for the petitioners submits that the petitioners have filed Title Partition Suit No. 89 of 2009 in the court of learned Sub Judge – 1^st, Bettiah, West Champaran for partition of the suit land and also seeking declaration that Will dated 04.03.2009 is null and void. During pendency of Partition Suit No. 89 of 2009 defendant no. 2 died and her name was deleted. But inadvertently her two grandsons and one granddaughter who were her heirs/legal representatives could not be added in her place though other heirs/legal representatives were already on record. Thereafter, petitioners filed a petition under Order 6 Rule 17 and Order 1 Rule 10 of the Code for making amendment in the suit and for adding respondent nos. 2, 3 and 4 as legal representatives of defendant no. 2 in the plaint and adding subsequent facts mentioned in paragraphs 2, 3 and 4 of the proposed amendment petitions. However, the prayer was not considered by the learned trial court and the petition has been rejected. The said order is under challenge before this Court.

4. Learned counsel for the petitioners further submits that the impugned order is not sustainable. The heirs/legal representatives of defendant no. 2 are necessary parties and without adding them as defendants, any order passed by the learned trial court will affect the right and title of all the parties. Similarly, the amendment sought is not going to change the nature of the suit and same is with regard to subsequent development and the learned trial court should have allowed the amendment sought.

5. Learned counsel appearing on behalf of respondent nos. 1, 5, 6 and 7 vehemently opposes the submission made on behalf of the petitioners. Learned counsel submits that instead of filing an application under Order 22 Rule 4 of the Code with prayer for condoning the delay in filing the application and setting aside the abatement, the petitioners have chosen a convenient way which is not permissible under law. It is settled proposition of law that where substitution has to take place under Order 22 Rule 4 of the Code, there is no applicability of the provisions of Order 6 Rule 17 or Order 1 Rule 10 of the Code. The petitioners could have filed their petition under Order 22 Rule 4 of the Code but concealing the facts, they have been trying to grab an order under Order 1 Rule 10 of the Code. Defendant no. 2 died in the year 2010 but no application was filed within the period of limitation under Order 22 Rule 4 of the Code for her substitution and the suit has abated. Learned counsel further submits that even the amendment could not be allowed for the simple reason that suit has abated as necessary and proper parties have not been added in the partition suit and the amendments are with regard to the rights of the legal representatives of deceased respondent no. 2. If they are not made parties, any amendment with regard to their right could be without any substance. Learned counsel further submits that the amendment at para 1 and 2 are with regard to cause title and deletion of party which is simply not permissible. Consequent amendments at para 3 and 4 are with regard to the share of the parties. Without any clarification as to how the shares have changed, it is a vague pleading. Therefore, there is no infirmity in the impugned order.

6. Having regard to the rival submission and on perusal of record, I find some merit in the submission of learned counsel for the respondents. If the petitioners failed to move appropriate application under Order 22 Rule 4 of the Code for substitution o