IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1738 of 2006 1. SK.FAKHRE ALAM. 2. SK. NAZRE ALAM. 3. SK. SADRE ALAM. 4. SK. ABRE ALAM. 5. IRSHAD ALAM @ ISHAD ALAM. ALL ARE SONS OF LATE SK. ABDUL KALAM AND RESIDENT OF VILLAGE:HARPUR, TOLA-GARAHWA, P.O. BIRWA, P.S. MAJHAULIA, DISTRICT:WEST CHAMPARAN. ……………………………...DEFENDANT 1ST SET-PETITIONERS. Versus 1. SK. ALI AHMAD, SON OF MD. KURAISH, VILLAGE GULWARIA, TOLA-MRGIA, P.O. + P.S. RAM GARWAH, DISTT. EAST CHAMPARAN. 2. BIBI JOBAIDA KHATOON, WIFE OF SK. MD. UMAR, VILLAGE: BAGAHI, P.O. + P.S. SUGAULI, DISTRICT EAST CHAMPARAN. 3. BIBI NAHNOODA KHATOON, WIFE OF FAQUROOL HASSAN, VILLAGE: SEMARI, P.O. + P.S. SATHI, DISTRICT EAST CHAMPARAN. 4. MD. NOORUDDIN, SON OF AIMUL HAQUE. 5. MD. IRFAN. 6. MD. IRSHAD. 7. MD. NASEEM. 8. MD. SAMIM. 9. TABSUN KHATOON. 10. SABIYA KHATOON. ALL ARE SONS AND DAUGHTER OF MD. NARUDDIN. ALL ARE RESIDENT OF VILLAGE: FULWARIA, TOLA MURGIA, P.O. + P.S. RAMGARWA, DISTRICT EAST CHAMPARAN. ………………………..PLAINTIFF-OPPOSITE PARTY (1ST SET). 11. ISLAMUN NOSHA, WIFE OF TAIYAB ALI, VILLAGE JASINPUR, P.O. KHIRWA, P.S. KURKAWALIA, DISTRICT EAST CHAMPARAN. (A). NAZMA KHATOON, WIFE OF KAUSAR, VILLAGE + P.O. ADKAPARIYA, P.S. RAM GARWAH, DISTRICT EAST CHAMPARAN. (B). ASHMA KHATOON, WIFE OF ANISUR RAHMAN, VILLAGE + P.O. JAUKATIA SK. TOLI, P.S. MAJHAULIA, DISTRICT WEST CHAMPARAN. (C). ZEENAT NESA, WIFE OF MD. ZOHA, VILLAGE HARPUR, TOLA GARWAH, P.O. BIRWA, P.S. MAJHAULIA. (D). BIBI NURAISHA, WIFE OF KALAM, VILLAGE HARPUR, TOLA GARWAH, P.O. BIRWA, P.S. MAJHAULIA, DISTRICT WEST CHAMPARAN. 12. BIBI MOHNA, WIFE OF ABDUL LATIF. 13. BIBI SAIRA, WIFE OF SK. TENI. - 2 - BOTH ARE RESIDENT OF VILLAGE MAHUA BHUSA, P.O. D.K. SHIKARPUR, P.S. GAUNAHA, DISTRICT-WEST CHAMPARAN. 14. SK. ABDUL WAHAB, SON OF SK. ISMAHAMAD. 15. SK. SAMSUL HODA. BOTH ARE RESIDENT OF VILLAGE PULWARIA, TOLA ADHKAPARIA, P.O. + P.S. RAM GARWAH, DISTRICT WEST CHAMPARAN. 16. BIBI ZAHIDA KHATOON, WIFE OF SK. JAINUL, VILLAGE LAL PARSA, P.O. KURSI BARWA, P.S. SIKTA, DISTRICT WEST CHAMPARAN. 17. AMNA KHATOON, WIFE OF MD. IZHAR, VILLAGE + P.O. JAUKATIA, SK. TOLI, P.S. NAJHAULIA, DISTRICT WEST CHAMPARAN. 18. BIBI KHALIKAN, WIFE OF ALIRAJ, VILLAGE + P.O. JAUKATIA SK. TOLI, P.S. MAJHAULIA, DISTRICT WEST CHAMPARAN. (A). BIBI HAITUN, WIFE OF TAJMUL, VILLAGE KUKRA, P.O. MANIHARI, P.S. SHIKARPUR, DISTRICT-WEST CHAMPARAN. 19. SK. ALIRAJ. 20. SK. MD. REYAJ. BOTH SONS OF SK. ALI HUSSAIN. 21. BIBI NOOR ZANNAT, WIFE OF ABDUL AZEEM. ALL ARE RESIDENT OF VILLAGE + P.O. JAUKATIA SK. TOLI, P.S. MAJHAULIA, DISTRICT: WEST CHAMPARAN. 22. BIBI SARIFTU NESSA, WIFE OF SK. KALIM, VILLAGE HARPUR, TOLA BHOGARI, P.O. HARPUR, P.S. MAJHAULIA, DISTRICT WEST CHAMPARAN. 23. EFTEKHAR AHMAD. 24. MUSTAQUE AHMAD. 25. NESAR AHMAD. ALL ARE SONS OF ANAULLAH AND RESIDENT OF VILLAGE HARPUR TOLA, GADWA, P.O. HARPUR, P.S. MAJHAULIA, DISTRICT WEST CHAMPARAN. 26. BIBI FATIMA, WIFE OF SK. NANHAK, VILLAGE + P.O. BAHERA, P.S. SIKTA, DISTRICT WEST CHAMPARAN. 27. SK. NANHAK. A. SK. MAHMDDIN. BOTH ARE SONS OF SK. TABARAK. B. SK. NURUL HAQUE, SON OF HAFIJULLAH. C. SK. INJUL HAQUE. D. NESARUL HAQUE. BOTH ARE SONS OF SK. NATHUNI. E. ZIZUL HAQUE. F. RIAUL HAQUE. ALL ARE SONS OF SK. NATHUNI. G. SAIRUN NESSA, WIFE OF NESAR AHMAD. H. TAISIRUN NESSA, WIFE OF REYAZ AHMAD. I. INJUL HAQUE, SON OF NEK MOHAMAD. J. IRSHAD ALAM, SON OF NEK MOHAMAD. - 3 - ALL ARE RESIDENT OF VILLAGE: BEHRA TOLA JHUMKA, P.O. BEHRA, P.S. SIKTA, DISTRICT WEST CHAMPARAN. 28. BASIR ALAM. (A). MD. SAID. BOTH ARE SONS SK. GAUHAR, VILLAGE LACHNAUTA, P.O. DAMAURA, P.S. LAURIYA, DISTRICT WEST CHAMPARAN. 29. MD. RASOOL, SON OF SK. ALIZAN, RESIDINT OF VILLAGE AND P.O. JAUKATIA, SK. TOLI, P.S. MAJHAULIA, DISTRICT WEST CHAMPARAN. 30. SK. SAMSUL HODA, SON OF SK. NAQUE BOOL. (A) FAZILAN KHATOON, WIFE OF SERAJUL HUQUE. (B) ROSHAN KHATOON, WIFE OF SK. MAKBOOL. ALL ARE RESIDENT OF VILLAGE AND P.O. JAUKATIA, P.S. MAJHAULIA, DISTRICT WEST CHAMPARAN. (C) SAKILA KHATOON, WIFE OF SK. JUMAN, VILLAGE SURAHI TOLA, P.O. BIRWA,P.S. MAJHAULIA, DISTRICT WEST CHAMPARAN. (D) HAMIDAN KHATOON, WIFE OF MD. SOHAIL, VILLAGE BADAIYA TOLA, P.O. MAHNAWA, P.S. MAJHAULIA, DISTRICT WEST CHAMPARAN. (E) AMIRAN KHATOON, WIFE OF TAUHID, VILLAGE JESINPUR, P.O. BIRWA, P.S. TURKAWALI, DISTRICT EAST CHAMPARAN. (F) KABULAN KHATOON, WIFE OF MD. FAROOQUE, VILLAGE SISWANIA,P.O. BABUIYA, P.S. PALANWA, DISTRICT EAST CHAMPARAN. 31. MD. IZHAR, SON OF SK.ALIZAN, VILLAGE + P.O. JAUKATIA, P.S. MAJHAULIA, DISTRICT-WEST CHAMPARAN. 32. BIBI SERAJUNESSA, WIFE OF SK. SAINAULLAH, VILLAGE HARPUR TOLA GARHWA, P.O. BIRWA, P.S. MAJHAULIA, DISTRICT WEST CHAMPARAN. 33. MOSTT. BHOJIA, WIFE OF SK. ASGAR, VILLAGE HARPUR, TOLA BHOGARI, P.O. BIRWA, P.S. MAJHAULIA, DISTRICT WEST CHAMPARAN. …………………………DEFENDANT IST SET-OPP. PARTIES. 34. SK. AINUL HUQUE. (A). SK. BASIRUL HAQUE. SONS OF MD. YASIN. (B). BIBI SAIDUNESSAR, WIFE OF ANWAR KARIM. ALL ARE RESIDENT OF VILLAGE HARPUR, TOLA GARHWA, P.O. BIRWA, P.S. MAJHAULIA, DISTRICT WEST CHAMPARAN. 35. BIBI SOGARA, WIFE OF EFTEKHAR AHMAD. 36. MD. NASIHUDDIN, WIFE OF MD. KAMIL. BOTH ARE RESIDENT OF VILLAGE DHOBANI, P.O. DHAMORA, P.S. IAURIYA, DISTRICT WEST CHAMPARAN. - 4 - 37. NAZAHAR KARIM, SON OF SK. ABDUL KADIR, VILLAGE HARPUR TOLA GARHWA, P.S. BIRWA, P.S. MAJHAULIA, DISTRICT WEST CHAMPARAN. 38. BIBI KAMRUL NISSA, WIFE OF SANAULLAH, VILLAGE HARPUR TOLA BHOGADI, P.O. BIRWA, P.S. MAJHAULIA, DISTRICT W. CHAMPARAN. 39. BIBI HAZUMAR, WIFE OF SK. MUSTAKIM, VILLAGE PIPARPATI, P.O. ADKAPARIA, P.S. RAM GARHWA, DISTRICT EAST CHAMPARAN. 40. BIBI HABIBAN, WIFE OF SK. YUNUS, VILLAGE BELWA, P.O. SATHI, DISTRICT WEST CHAMPARAN. …………………………...DEFENDANT 2ND SET. OPP. PARTIES. 41. SK. FAROOQUE. (A). SK. CHOKAT. BOTH ARE SONS OF SK. JOKHU AND RESIDENT OF VILLAGE HARPUR TOLA GARHWA, P.O. BIRWA, P.S. MAJHAULIA, DISTRICT-WEST CHAMPARAN. (B). HAZUMAR KHATOON, WIFE OF MD. HAROON, VILLAGE SISWANIA, P.O. BABUIYA, P.S. PALANWA, DISTRICT EAST CHAMPARAN. 42. BABUJAN. (A). SADARE ALAM. (B). KHURSHID ALAM. ALL ARE SONS OF SK. NURUL HASAN AND RESIDENT OF VILLAGE HARPUR TOLA GARHWA, P.S. BIRWA, P.S. MAJHAULIA, DISTRICT WEST CHAMPARAN. (C). NOOR NESSA, WIFE OF MD. AMIL, VILLAGE AND P.O. KUSHI BARWA, P.S. SIKTA, DISTRICT WEST CHAMPARAN. (D). ANWAR NESSA, WIFE OF SK. NABI HASSAN, VILLAGE BADAIYA, TOLA P.O. MAHNAWA, P.S. MAJHAULIA, DISTRICT WEST CHAMPARAN. (E). GENI NESSA, WIFE OF TAIDDIN, VILLAGE AND P.O. KHAIRATIA, P.S. LAURIYA, DISTRICT WEST CHAMPARAN. (F). ZAMURAN NESSA, WIFE OF SK. MAZBULLAH, VILLAGE HARPUR TOLA BHOGARI, P.O. BIRWA, P.S. MAJHAULIA, DISTRICT WEST CHAMPARAN. 43. AINUL HAQUE, SON OF MD. YASIN, VILLAGE HARPUR TOLA GARHWA, P.O. BIRWA, P.S. MAJHAULIA, DISTRICT WEST CHAMPARAN. ----------- For the Petitioners : Mr. Akhileshwar Kumar Srivastava, Advocate. For O.P. No.1 to 5 and 7 : M/s. Md. Anis Akhtar and Arif Siddiqui, to 10 Advocates. ----------- 3. 5.10.2009. Heard learned counsel for the petitioners and learned - 5 - counsel for opposite party nos.1 to 5 and 7 to 10. The defendants 1st set -petitioners are aggrieved by order dated 3.7.2006 passed by the learned Sub Judge-I, West Champaran at Bettiah, in Partition Suit No.64/80, whereby their prayer for recall of the order dated 17.11.2005 and 26.2.2006 has been rejected. It is submitted on behalf of the petitioners that defendant no.32, Bibi Hazoomar, had died on 3.7.2005 itself but the plaintiffs did not take any step for her substitution. However, the legal representatives of the deceased-defendant no.32 had filed a petition under Order I Rule 10 C.P.C., for their impleadment in place of deceased-defendant no.32, which had been illegally allowed as the same was not maintainable. It is submitted that a petition under Order XXII Rule 4 C.P.C. had been filed by the plaintiffs. It is also stated that there is no prayer for setting aside the abatement. There is no separate petition of condoning the delay. However, on 17.11.2005 the aforesaid petition , despite rejoinder filed by the petitioners, was allowed. The petitioners being aggrieved thereby filed a petition for recall of the earlier order dated 17.11.2005 and 26.2.2006 which has been rejected by the impugned order dated 3.7.2006. Learned counsel for opposite party nos.1 to 5 and 7 to 10 submitted that the heirs of the deceased-defendant no.32 have explained the delay in their petition under Order I Rule 10 C.P.C. It is submitted that mentioning wrong provision of law does not take away the right of the parties. It is also submitted that the petitioners did not take any step immediately for the recall of the earlier order rather after - 6 - the examination of the some witnesses such petition has been filed which is clearly with a view to delay the proceeding of the partition suit which is of the year 1987. The petitioners have filed Xerox copies of the petition filed under Order I Rule 10 C.P.C., rejoinder thereof and a recall petition. Let the same be kept on record. There is no order dated 26.2.2006 which is apparent from the order sheet annexed with the petition. Thus, there was no question of the recall of such order. So far as the order dated 17.11.2005 is concerned, definitely there are certain typographical errors in the order dated 17.11.2005. A petition under Order I Rule 10 C.P.C. had been stated to be filed by the defendant no.1 whereas such petition was actually filed by the heir and legal representatives of the deceased-defendant no.32. However, the aforesaid legal representatives have stated in their petition that they did not have any knowledge of the proceeding and they had heard about the same from one Bashirul Haque on 30.7.2005 and thereafter the steps for their impleadment were taken. The Apex Court in the case of K. Rudrappa Vs. Shivappa, reported in AIR 2004 Supreme Court 4346 has observed in clear terms that hyper technical objections should not come in the way of doing full justice. In that case even though there was no prayer for setting aside abatement, the Apex Court held that the High Court ought to have allowed the prayer of substitution of the heirs of deceased party as such hyper technical objections should not come in - 7 - the way of doing full and complete justice. In the present case also, a petition under Order 1 Rule 10 C.P.C. was filed and delay had been explained. The court below has not committed any error in allowing prayer for substitution/addition of the legal representatives of the deceased defendant no.32. This Civil Revision is, accordingly, dismissed. P.S. (Dr. Ravi Ranjan, J)