c . 1 C %.K',::^^ lyi.£CC,^^: .\^""^ y BEFORE THE HON'BLE HIGH COURT OF CHHATTISGARH "ATBILASPUR W.P(227^No. V^^ /2@@@ ^'^ PETITIONER DEFENDANT N0. 5 RESPONDENTS. / Ramdulare Sahu S/o. Ramdhani Sahu, aged about 73 years, Occupation- Agriculture, Post Kasra, P.S. Patna, Tahsil Baikunthpur, Distt. Korea (C.G.) VERSUS :1 Kailash Nath Kushwaha, S/o. Shobhit Prasad Kushwaha, aged about 45 years, R/o. Village-Amhar, P.S. Patna, Tahsil-Baikunthpur, District Koria (C.G.) (PLA1NTIFF1 Parasnath S/o. Mahabeer Koir, age 70 years, Occupation- Agriculture R/o. Village Amhar, P.S. Patna, Tahsil Baikunthpur, Distt. Korea (C.G.) (DEFENDANT N0. 2) The State of M.P. ( Now C.G.) Through- Collector, Korea Baikunthpur (PROFORMA DEFENDANT N0. 4) WRIT PETITION UNDER ARTICLE 227 OF THE CQNSTTTUTION OF INDIA. 3. L-..-—^.. ^r HIGH COURT OF CHHATTISGARH AT BILASPUR WP (2271 N0. 2259 OF 2010 ptnlianu—^ ./ PETITZONER RESPOITOENTS Ramdulare Sahu Versus Kailash Nafh Kushwaha and others SB:- HON»BLESHRI N.K. AGARWAL, J PRBSENT:- Shri A.K. Prasad, Advocate, for the appellant ORAL ORDER (21-6-2011) 1. Heard on admission. 2. Instant petition caUs in question the legality and propriety of the order dated 9-4-200 1 passed by the Civil Judge Class II, Baikunthpur, Distt. Korea in Civil Suit No. 10- A/2001. 3. Facts of the case in brief are fhat the respondent No. l/ plainttff filed a civil suit for declaration, partition and separate possession ofthe suit land. The defendants No.l, 2 and 5 filed written statement. Thereafter the defendant No. 1 expired. The plaintiff filed an application Lmder Order 22 Rule 3 read with Section 151 of C.P.C. praying that the name of defendant No. 1 Shobhnath be deleted from the array ofthe plamt as in anofher suit bearing Civil Suit No. 15-A/88 on an application under Order 22 Rule 2 CPC, only Parasnath has been shown to be his legal heir who is already on record. 4. According to the petitioner, deceased executed two wills and fhereafter the persons in whose favour the wills have been executed should have been substituted in his place. The trial Court allowed plaintiffs application and permitted hiai to delete the name of defendant No. 1. Hence this petition. ;ui^%> ^^^ ^ ^-^1 m 5. Shri A.K. Prasad, leamed counsel for fhe petitioner would submit, there is a dispute. The trial Court was duty bound to make enquiry under Order 22 Rule 5 of C.P.C. whether or not the persons in whose favour fhe defendant No. 1 has executed the wUls should be substituted in his place or not. Wifhout conducting such enquir^7, deletion of name of defendant No. 1 froni the suit is contrmy to law and is illegal and the order tmpugned deserves to be set aside. 6. I have heard leamed counsel for the petitioner. 7. The order unpugned is passed in the year 2001 whereas the instant petition has been preferred on 17-12-2009 i.e. after a period of 8 years wifhout explaining the above delay mentiomng in the at'fidavit that there is no delay in filing the present petition. The above statement itself leads to dismissal of fhe petition. More over, as per petitioner if there is no legal representative of the deceased/defendant No. 1 except one who is already on record aad plaiiitiff wants to delete his name then he does so on his own risk and if it is untrue then its effect and unport shall be decided by fhe trial Court in accordance with law but for that purpose no enquiry under Order 22 Riile 5 is contemplated inasmuch neither there is a claim between the rival claimants who wants to be substituted in place of defendant nor plaintiff himself is substituting any person in his place. 8. For the reasbns mentioned hereinabove, fhe petition being devoid of substance, filed belatedly, deserves to be and is hereby dismissed. Sd/- N. K. Agarwal Judge p/