IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.12 of 2007 1. JITENDRA SINGH son of Sri Harishanker Singh 2. Deonath Chaudhary 3. Rajesh Chaudhary both minor sons of Munni Chaudhary and under guardianship of their father Sri Munni Chaudhary 4. Binode Chaudhary 5. Pintu Chaudhary both minor sons of Jawahar Chaudhary and under the guardianship of their father Sri Jawahar Chaudhary All residents of village Haziapur,(Ward No. 19) P.O. P.S. and District Gopalganj … … Petitioners Versus 1. Sri BRIJ KISHORE SINGH son of late Suryadeo Narain Singh 2. Sumitra Devi 3. Rambha Devi both daughters of late Suryadeo Narain Singh Al l residents of village Haziapur, P.O., P.S. and Distric Gopalganj … … Opp. Parties For the petitioners: Shri Surya Bhushan Pd. Singh,Adv. For the Opp. Parties: Shri Rajendra Kishore Pd., Adv. ----------- 4. 11 .10.2010 This revision petition is directed ageist the order dated 21.9.2006 passed by Sub-ordinate Judge VI, Gopalganj, in Title Suit No. 146 of 1984 by which he held that the heirs of defendant no.3 were not required to be brought on record to substitute the above defendant after his death. It appears that defendant no.3 had died on 4.2.1988 and before his death he had, though appeared, but had not filed his written statement. He had, of course, appeared during the hearing of the injunction petition under Order 39 Rules 1 and 2 C.P.C. The prayer of the plaintiff was that the said defendant no.3 was not required to be substituted as he had already transferred his whole interest in the property and as such he was not a necessary party. By citing the provision of Order 22 Rule 4(4) C.P.C. the learned Judge held that defendant no. 3 who had neither appeared nor even after having appeared, had filed 2 his written statement and further that he had already transferred the whole of his interest in the suit property was not required after his death to be substituted by his heirs. The principle of law has been settled by a Division Bench of this Court in the case reported in 2000(3) P.L.J.R 675 Md. S. Imam Vs. Rai Bharat Kumar and Ors and it has been held, after noticing the different decisions of the Supreme Court and divergent views of different High Courts including that of a Single Judge of this Court in Pradip Narain Singh Vs. Brij Nandan Prasad reported in A.I.R. 1988 Patna 147, that if the defendant was merely a proforma defendant who had not chosen to appear nor had chosen to file written statement and even if had filed his written statement had not contested the suit then, in such a situation, such a defendant was not required to be substituted in the light of the provision of Order 22(Rule 4(4) C.P.C. The order passed by the learned Sub-ordinate Judge VI, appears fully covered by the above decision in Md. S Imam Vs. Rai Bharat Kumar and Ors. The revision petition appears of no merit. It is dismissed. Kanth ( Dharnidhar Jha, J.)