IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.2149 of 2008 BABAN BARAI & ORS Versus BHAGRATHI DEVI & ORS ----------- 2 07.01.2009 Heard counsel for the petitioners. A very simple looking prayer on the first look, once gone into the deep of the matter would itself expose the clever design on the part of the petitioner. In a suit, Title Suit No. 94 of 1985, the plaintiff- petitioners had impleaded one Sakhi Nonia as defendant No.6. That suit was contested for next 22 years and ultimately was dismissed for default on 28.8.2007. Thereafter when the Misc. case was filed Sakhi Nonia again was impleaded as opposite party No. 20 and the notices were sent on Sakhi Nonia. Thereafter the Process Server had submitted a report that Sakhi Nonia was already dead. Instead of substituting Sakhi Nonia the plaintiff–petitioners seeking restoration of his suit in their anxiety to get the suit restored, had taken a plea that there was actually no person in the name of Sakhi Nonia in existence and in fact took a plea of Rikhi Nonia being the actual person. With this plea an application was filed by him in the Court below now, seeking amendment in the plaint as also in the application seeking restoration for correcting the name of Sakhi Nonia as Rikhi Nonia, but the court below has found the whole thing as noted above and has rejected such amendment on the ground that the petitioner did not lead any evidence to show that the name of the son of late Phool Chand - 2 - Nonia was Rikhi Nonia and not Sakhi Nonia . That apart the Court below has also taken into account that the entire Title Suit No. 94 of 1985 was contested by the plaintiffs-petitioners treating Sakhi Nonia to be the person as defendant No.6. Counsel for the petitioners is not in a position to submit as to whether notices/summons were served on Sakhi Nonia in course of the proceedings of the Title Suit No. 94 of 1985 which as noted, had continued for a period of 22 years, before it got dismissed for default on 28.8.2007. In fact, counsel for the petitioners is also not in a position to deny that the other son of Phool Chand Nonia being Lori Nonia who is opposite party No.21 in this Civil Revision application had also contested the suit with a specific plea that his father Late Phool Chand Nonia had no son known as Rikhi Nonia rather his name was Sakhi Nonia. All these things were available before the Court below and the petitioner did not complete his duty as with regard to leading evidence with regard to non- existence of Sakhi Nonia and Rikhi Nonia being the only son of Late Phool Chand Nonia. That being so, this Court would not find any jurisdictional error in the impugned order of the Court below. Accordingly, this Civil Revision application being wholly misconceived is hereby dismissed. Bibhash (Mihir Kumar Jha, J.)