IN THE HIGH COURT OF JUDICATURE AT PATNA C. REV. No.108 of 2008 FAIZ MURTAZA ALI, son of Late Justice S.M. Fazal Ali, R/o 112, Uday Park, New Delhi-110049, through Anwar Najmi, son of late Akhtar Sayeed Mojibi, Moh. Dariyapur, P.S. Pirbahore, Distt. Patna, Power of Attorney holder ........…….. Petitioner Versus 1. SYED AKABIR HUSSAIN, son of Syed Shakir Hussain, Moh. Hussain Khan, Sarai, P.O. Sambhat, District Muradabad, At present Resident of Herritage Cottage Frazer Road, P.S. Gandhi Maidan, Patna. 2. LALAN YADAV, son of late Chhote Lal Yadav, R/o Village & P.O. Pepea Khas, P..S.Mirganj, District Gopalganj….Opposite Parties ----------- For the Petitioner :Mr. K. N. Choubey, Sr. Advocate, Mr. Ambuj Nayan Choubey, Advocate, Mr.Jeetendra Ranjan,Advocate & Mr. Gopal Swaroop Dubey,Advocate For the Opposite Parties : …………………… None. ---------- 03/ 20.10.2008 Heard learned counsel for the petitioner, who has filed the instant case for review of order dated 04.03.2008 passed by this Court dismissing his C.R. No. 1853 of 2005. The point raised by the petitioner is that Title Suit No. 215 of 2004, out of which the said civil revision had arisen, was filed by opposite party no.2 for specific performance of contract against the petitioner on 20.06.2004 much after Mrs. Saiyeda Mehdi Imam had died on 22.02.2004. Hence, he submits that the petition filed by opposite party no.1 on 07.03.2005 for substituting him in place of Late Saiyeda Mehdi Imam was not maintainable as she was not a party to the suit and had died much earlier . Thus, he states that the learned trial court should not have allowed the said substitution petition filed by opposite party no.1 in the suit. This question has already been considered by this Court in - 2 - paragraphs 4 and 10 of the order under review, in which it was found that during the pendency of the suit opposite party no.1 filed a petition for being added as a party to the suit claiming that Late Saiyeda Mehdi Imam, widow of late Syed Mehdi Imam, being Mutawallia of the said Waqf Estate was a necessary party to the suit but she was not impleaded and subsequently she died after executing her last Will in favour of opposite party no.1 with respect to the Waqf property as claimed by him and hence he has to be added as a party to the suit. Furthermore, the plaintiff (opposite party no.2) did not object to the said petition, rather he stated that he had no objection if opposite party no.1 was added as a party defendant. However, the defendant-petitioner objected to it but after considering the matter in detail the learned court below allowed the said petition filed by opposite party no.1 by order dated 20.06.2005, against which aforesaid civil revision was filed. Furthermore, the petitioner, who was defendant in the suit, was claiming only on the basis that he was the nephew of the said Late Saiyeda Mehdi Imam, who had died and hence both the petitioner as well as opposite party no.1 were claiming from the same person, who had died prior to the filing of the suit. Thus, it was necessary for full, final and proper adjudication of the matter in dispute to add opposite party no. 1 also as defendant no.2 in the suit to which the plaintiff of the suit, who was dominus litus, did not object . In the said circumstances, the learned court below rightly allowed the intervention petition of opposite party no.1 by the order, which was challenged in the civil revision and this Court having not - 3 - found any illegality or jurisdictional error in the same has rightly rejected the said civil revision. In the said circumstances, this Court does not find any error apparent on the face of record nor the petitioner could produce any fresh material which was not available to him earlier nor even this Court finds any other reason for reviewing the impugned order of this Court. Accordingly, this civil review petition is dismissed. However, it may be noted that by order dated 20.06.2005, which was challenged in the civil revision, the learned trial court did not pass any order for expunging the name of the petitioner, who was defendant in the suit nor even this Court in order dated 04.03.2008, which is under review, passed any order for expunging the name of the petitioner (defendant) from the suit, rather from the text and tenor of the said order, it appears that both of them were necessary for the full, final and proper disposal of the issues involved in the suit, for which purpose the petitioner was treated as defendant no.1 and opposite party no.1 was merely added as defendant no.2 in paragraph 11 of the order under review dated 04.03.2008. In the said circumstances, if the name of the petitioner (defendant no.1) is expunged by the trial court as claimed by learned counsel for the petitioner, it cannot be either due to the order under review dated 04.03.2008 or the impugned order of the trial court dated 20.06.2005. However, if the name of the petitioner (defendant no.1) has been expunged by the trial court, it must be for some other reasons and hence the petitioner will be at liberty to move before the learned - 4 - court below for including his name in the suit, which should be decided by the trial court in accordance with the provisions of law on its own merit. MPS/ ( S. N. Hussain, J. )