IN THE HIGH COURT OF JUDICATURE AT PATNA Miscellaneous Appeal No.279 of 2011 Brij Mohan Upadhyay son of late Sheo Bihari Upadhyay, resident of Village Babhangawa, Police Station Barahara, District Bhojpur at present residing at Bhowra 12 No. Post Office Bhowara, Police Station Jora Pokhar, District Dhanbad. ... ... Appellants Versus 1. Dhananjay Pandey son of Naresh Pandey. 2. Naresh Pandey son of not known to the appellant. Both are resident of Village Narayanpur, Police Station Sahar,District Bhojpur. 3. Mungrato Devi w/o Late Awadh Bihari Pandey. 4. Magleshwar Upadhyay son of Late Sheo Bihari Upadhyay. All resident of Village Babhangawan, Police Station Barahara, District Bhojpur. ... ... Respondents. ---------------------------------- 7. 15.12.2011. Heard learned counsel for the appellant as well as Shri Manoj Kumar Upadhyay, learned counsel appearing on behalf of all the respondents. The present appeal was preferred under Section 299 of the Indian Succession Act against an order whereby L.A. Case i.e. L.A. No.7 of 2000 filed by the appellant was dismissed mainly on the ground that the appellant before the court below had not impleaded near relatives of testator as party. Learned counsel for the appellant submits that of course they were not impleaded since there is no statutory provision under the Act, but name of relatives was mentioned in paragraph-11 of 2 the petition filed before the court below. It further appears that in the proceeding before the court below, a notice was issued to general public whereas the name of relatives of testator was mentioned in the petition and thereafter, the learned court below dismissed the appeal. After some argument, learned counsel for the appellant seeks permission to withdraw the appeal with liberty to approach the court below again after impleading the relatives of the testator as party in L.A. case. The court is of the opinion that since one of the main ground for rejection of L.A. No.7 of 2000 was non impleading of close relatives of the testator, the appellant can be granted liberty to file a fresh petition before the court below after impleading the near relatives of testator as opposite parties in the title page of the petition. If such petition is filed, the court below, without taking the plea of limitation, may proceed with the case irrespective of the fact that earlier the petition for Letters of Administration was 3 rejected. It is expected that if such petition is filed, the court below will proceed with the case expeditiously. With above observation and direction, the appeal stands dismissed as withdrawn. N.H./ ( Rakesh Kumar,J.)