IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Revision No.130 of 2013

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1. Smt. Omi Rajak w/o Late Omi Rajak

2. Naresh Rajak

3. Kallu Rajak @ Kallu Kumar

4. Raju Rajak Sons of Late Omi Rajak

5. Rani Kumari

6. Girja Kumari

7. Sabita Devi

8. Soni Devi Daughters of Late Omi Rajak All residents of Mohalla - Terhi Ghat,

Patna City, P.S. Khajekalan, District - Patna at present resident of Hajiganj, Patna

City, P.S. Chowk, District - Patna.

.... .... Petitioner/s

Versus

1. Munna Rajak S/o Late Lallu Rajak resident of Mohalla - Hajiganj, Patna City,

P.S. Chowk, District - Patna

.... .... Respondent/s

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Appearance :

For the Petitioner/s : Mr. JITENDRA KISHORE VERMA, Adv

For the Respondent/s : Mr.

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CORAM: HONOURABLE MR. JUSTICE V. NATH

ORAL JUDGMENT

Date: 02-05-2016

Heard learned counsel for the parties.

This revision application has been filed against the

order dated 16.04.2013 passed in Title Miscellaneous Appeal No. 64

of 2011 whereby the learned appellate court below has set aside the

order passed by the trial court dismissing the suit as abated for non

Patna High Court C.R. No.130 of 2013 dt.02-05-2016

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substitution of the heirs and legal representative of the deceased-

defendant Omi Rajak.

The plaintiff's-opposite parties filed title Eviction Suit

No. 45 of 1997 praying the reliefs for title over the suit premises and

eviction of the defendant Omi Rajak from the same. The defendant

Omi Rajak died during the pendency of the suit. The petition for

substitution was filed by the plaintiff on 10.01.2003 praying for

expunging the name of the deceased-defendant Omi Rajak and

substituting the names of his heirs and legal representatives. The

prayer for substitution was allowed by order dated 05.07.2004. It

would be pertinent to mention here that the prayer for substitution

was allowed by order dated 05.07.2004 (Annexure-1) on the basis of

the statement of the plaintiff made in the substitution petition that

the defendant Omi Rajak died on 23.10.2002, and on that basis it

was held that the substitution petition filed on 10.01.2003 was

within time.

The substituted heirs of the deceased-defendant Omi

Rajak appeared after notice and filed a petition on 02.05.2007

stating therein that the defendant Omi Rajak in fact died on

22.03.2002 and not on 23.10.2002 as claimed by the plaintiff in his

petition for substitution. It was, therefore, prayed that the suit had

abated for non substitution of the heirs and legal representatives of

Patna High Court C.R. No.130 of 2013 dt.02-05-2016

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the deceased Omi Rajak within the prescribed period. It was also

alleged that the order dated 05.07.2004 was obtained by the plaintiff

by fraudulent misrepresentation of fact.

The trial court heard the parties on the said petition and

after scrutiny of evidence came to the finding that the defendant

Omi Rajak actually died on 22.03.2002. It was further also found

that the plaintiff had the knowledge of death of the defendant Omi

Rajak on 22.03.2002 but by making a false statement with regard to

the date of death, the order dated 05.07.2004 was obtained for

substitution of the heirs and legal representatives of the deceased

defendant. On the base of these conclusions, the trial court came to

the finding that the suit had abated for non substitution of the

defendant Omi Rajak within time. The suit was dismissed as abated

by order dated 08.02.2008. The plaintiff thereafter filed

Miscellaneous Appeal No. 64 of 2011 against the order dated

08.02.2008. By the impugned order the appellate court below has

held that the trial court had acted without jurisdiction in recalling the

previous order dated 05.07.2004 allowing the prayer for

substituti