IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.2306 of 2006 1.Dr.Rajesh Kumar Gami, son of Late Rajendra Prasad Gami 2.Ramesh Kumar Gami, son of Late Rajendra Prasad Gami Both resident of Mohalla- Rasalpur Kalan @ Benta, Hospital Road, P.O.- D.M.C.H. Campus, P.S. Laheria Sarai, district- Darbhanga …. Petitioner Versus 1.SUNIL KUMAR GAMI, son of Harendra Kumar Gami 2.Anil Kumar Gami, son of Harendra Kumar Gami 3.Harendra Kumar Gami, son of Late Shiv Nandan Gami 4.Narendra Kumar Gami, son of Late Shiv Nandan Gami 5.Dhirendra Kumar gami, son of Late Shiv Nandan Gami 6.Bimal Kumar Gami, son of Late Shiv Nandan Gami 7.Nirmal Kumar Gami, son of Late Shiv Nandan Gami All resident of Mohalla- Rasalpur Kalan @ Benta, Hospital Road, P.O.-D.M.C. Campus, P.S.- Laheriasarai, District- Darbhanga …… Opp.Parties ----------- 2. 30/04/2009 Admittedly, the sole plaintiff died. It is also admitted that defendant nos.8 and 9 are his sons. It is also admitted that the plaintiff had not sought for any relief against them. Therefore, on the death of the plaintiff, these defendants filed a petition for their transposition in the suit as plaintiff so that they may take steps to bring other legal representatives also on record, who were five married daughters of the deceased plaintiff. - 2 - Learned court below has rejected the petition on the ground that Order XXIII Rule 1-A of the Code of Civil Procedure refers to withdrawal or abandonment of the suit only and not of death of the sole plaintiff. He has also taken notice of the fact that the other heirs of the deceased sole plaintiff could proceed with the suit. Learned counsel for the petitioners has produced an office copy of the petition filed by defendant nos.8 and 9 in the court below for their transposition as plaintiff as they were admittedly sons of the sole deceased plaintiff and they had no adverse interest against him. From the petition, it appears that the petitioners had not resorted to the provisions of Order XXIII Rule 1-A C.P.C. in the petition for consideration of the petition by learned court below. In fact, no provision of law is mentioned in the petition. Therefore, admittedly, it appears that the court below has wrongly taken notice of the provisions of Order XXIII Rule 1-A C.P.C. for rejecting the said petition. It is settled law that if there is no specific provision available in the Code of Civil Procedure for exercise of power, the court can - 3 - exercise its inherent powers under section 151 C.P.C. for passing any legal and valid order in the interest of justice. In the circumstances, learned court below ought to have treated the petition filed by defendants no.8 and 9 as having been filed under section 151 C.P.C. and in the interest of justice it ought to have exercised its inherent powers for proceeding with the suit and deciding it on merits. Therefore, this Court is of the view that the matter is fit to be remitted back to the learned court below for treating the said petition of the petitioners as one under section 151 C.P.C. and to consider the same under its inherent powers and after hearing the parties to pass orders on the same on merits. This Court orders accordingly. For the purpose, the order dated 20.10.2006 passed by the learned court below is set aside. With the aforesaid observations and directions, this revision application is disposed of. Pradeep/ (J. N. Singh, J.)