1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO. 98 OF 2010 Nandram Bala Salampure ...Petitioner Versus Mohan Bala Salampure and others ...Respondents ..... Mr. Mujtaba Gulam Mustafa , advocate for the appellant Mr. A.P. Bhandari, advocate for respondent No.4. ..... CORAM: S. S. SHINDE, J. DATED: 15TH OCTOBER, 2010 PER COURT:- 1 This civil revision application is filed challenging the order dated 31.3.2010 passed by the learned 14th Jt. C.J.J.D. Aurangabad in R.C.S. No. 425 of 2006. 2 The respondents 4 and 5 herein are the original plaintiffs, who have filed R.C.S. No. 425 of 2006 before the learned C.J.J.D. Aurangabad, which is pending before the 14th Joint C.J.J.D. Aurangabad for partition and separate possession of land Gat No. 49 2 Old Survey No.33 admeasuring 16 acres 12 gunthas. The petitioner herein filed written statement in the said suit. 3 During pendency of the suit, original plaintiff No.2 died, however, the legal representatives of the said plaintiff No.2 were not brought on record. An application came to be filed on behalf of the plaintiff at Exh.27 before the court under the provisions of Order I Rule 10 of C.P.C. for adding the legal representatives of original plaintiff No. 2, as defendants in the said suit. 4 The petitioner herein filed written statement to the said application on 16.10.2007. The court has allowed the application of the plaintiff on 31.3.2010 and directed the plaintiffs to carry out the amendment within 14 days adding the legal representatives of the deceased plaintiff No.2 as defendants in the said suit. Being aggrieved and dissatisfied with the said order, the present Civil Revision Application is filed by the petitioner, who is original defendant No.3 in R.C.S. No. 425 of 2006. 5 Learned counsel appearing for the petitioner submits that the plaintiff No.1 and plaintiff No.2 are real sisters. Even the death certificate was not filed alongwith the application to ascertain the exact date of death of plaintiff No.2. The application filed by the plaintiff is at belated stage and not within limitation. No separate application was 3 filed for condonation of delay for adding the Legal representatives of plaintiff No.2. Even there is no ground made out by the plaintiff when the plaintiff No.1 got knowledge of death of plaintiff No.2 and why there is delay in filing the application for adding the L.Rs. of plaintiff No.2, as defendants. The plaintiff has not filed supporting affidavit alongwith the application. Accordingly to the counsel for the petitioner, the whole suit is abated. There is nothing remained in the suit. The Legal representatives of the plaintiff No.2 cannot be added as defendants. Considering the said fact, the application ought to have been rejected by the Court below. However, the Court has allowed the application and directed to add the legal representatives of plaintiff No.2 as defendants in the suit. In support of his contention, learned counsel for the petitioner placed reliance on the judgment of the Hon'ble Supreme Court in the case of Budh Ram Vs. Bansi reported in 2010 AIR SCW 5071. 6 On the other hand, learned counsel appearing for the respondent has submitted that sufficient and sound reasons are recorded by the court below while allowing the application and there is no infirmity and/or error committed by the lower court in allowing the application. He therefore, would submit that the order passed by the court below is just and proper and no interference is warranted at the hands of this Hon'ble court. 4 In support of his contention, counsel for the respondents placed reliance on the reported judgment of the Hon’ble Supreme Court in the case of Bhagwan Swaroop and others Vs. Mool Chand and others, reported in 1983 STPL (LE) 11247 SS and in the case of S. Anjaneyulu Vs. Soorampally Venkata Rama Gupta, reported in 1993-ALT-3-607, 1993-APLJ 2-435 and submitted that since the suit is for partition and separate possession and if the plaintiff Nos. 1 and 2 are real sisters, the legal representatives of deceased plaintiff No.2 are necessary parties to the partition suit. He further submitted that present petitioner cannot object to addition of legal representatives of deceased plaintiff No.2 as defendants since they have no grievance about the addition as a defendants. Therefore, he would submit that the Civil Revision Application is devoid of any merits and same deserves to be rejected. 7 Upon hearing the counsel for the parties and on going through the contents of the Revision Application and the impugned order, I am of the opinion that the order impugned in this Revision Application needs no interference. It is not in dispute that the suit filed by the plaintiff is for partition. The said suit does not abate in its entirety because of the death of one of the parties. In a partition suit any other party can claim transposition from the category of defendant to the category of plaintiff and vice-versa. This position in some what identical situation has been considered by the Andhra Pradesh High 5 Court in the case of S. Anjaneyulu (supra), in para 10 of the said judgment. 8 The Hon’ble Supreme Court in the case of Bhagwan (supra) has considered that when the L.Rs. of deceased person has no grievance for adding them parties though belatedly, objection by the other parties to the suit is only to derive the technical advantage by this procedural lapse. In the present case, there is no grievance to the Legal representatives of deceased plaintiff No.2 about the delay in bringing them on record and make them defendants in the suit. In the given set of facts if the legal representatives of deceased plaintiff No.2 has no grievance, therefore, the trial Court has rightly held in the partition suit all the co-sharers are necessary parties to adjudge their share and it is necessary to enable the court effectually and completely to adjudicate upon and to settle all the questions involved in the suit. The plaintiff No.2 has died and the L.Rs. of plaintiff No.2 are to be held as co-sharers in the suit property and are necessary parties to the suit. Therefore, the main contention of the petitioner that the due to death of plaintiff No.2, whole suit abated, is devoid of any merits. In para 8, the trial court further held that the plaintiff No.1 is not bringing the L.Rs. of plaintiff No.2 as L.Rs. but she is adding them as defendants to the suit. There is no question of setting aside the 6 abatement against the plaintiff No.2. On the contrary, it would be proper to allow this application filed by the plaintiff No.1 under Order 1 Rule 10 of C.P.C. and accordingly allowed the L.Rs. of the plaintiff No. 2 to be added as defendants in the suit. 9 Therefore, taking over all view of the matter, in my opinion, no any jurisdictional error has been pointed out so as to take a different view than taken by the trial Court. It is also not in dispute that in pursuance to the directions of the trial court, the L.Rs. of deceased plaintiff No.2 has been added as party defendants to the suit. As stated earlier, the L.Rs. of plaintiff No.2 have no grievance for adding them as defendants in the suit and for condonation of delay in bringing them on record. Therefore, for all these reasons, there is no substance in the contention of the counsel for the petitioner. Civil Revision Application stands dismissed. *****