CRP 220/2011 BEFORE THE HON’BLE MRS. JUSTICE ANIMA HAZARIKA ORDER (ORAL) Challenge in the instant revision petition is made against the o rder dated 06.04.2011 passed in Title Appeal No. 15 of 2009 whereby and whereund er the learned District Judge, Nagaon allowed the petition of the plaintiff/resp ondent No.1 filed under Order 1 Rule 10(2) of the Code of Civil Procedure (herei nafter referred to as ’the Code’ in short) thereby striking out the name of the pro forma respondent no. 2 from the cause title of the memorandum of appeal. 2. The brief facts of the case are summarized hereinbelow: The Respondent No. 1 herein as plaintiff filed a suit being Title Suit N o. 19 of 1995 in the court of the learned Assistant District Judge, Nagaon again st the defendants-petitioners herein seeking a decree for declaration of right, title and interest over ’A’ schedule land described in the plaint and for evic tion of the defendant Nos. 1 to 4 from the schedule ’A’ premises on the ground of default in paying rent and for bona fide requirement of the suit premises as well as for Khas possession and a decree for realization of arrear rent. In the suit the respondent No. 1-plaintiff had arrayed his own sister Smti Rama Devi Ga rodia as pro forma defendant no. 5 alongwith others. 3. The summon was accordingly served on the pro forma defendant no. 5 but she did not contest the suit by filing written statement since no relief has been claimed against her and the suit proceeded ex-parte against her. The de fendant-appellant contested the suit by filing written statement. The trial cour t considering the material evidence on record and after hearing the parties decr eed the suit. 4. Being aggrieved with the judgment and decree the defendant-appel lants took up the matter before the appellate court and the appellant court admi tted the appeal. During the pendency of the appeal, the respondent-plaintiff fil ed a peititon under Order I Rule 10(2) of the Code being Petition No. 855/2010 c ontending inter alia that the pro forma respondent no. 5 in the suit who has bee n arrayed as pro forma defendant no. 2 in the appeal be struck off since the ap pellants did not make any endeavour to serve the summons on her in spite of best opportunities available to them, more so, when the pro forma defendant no. 2 wa s made a proper party and no relief was claimed against her though the notice w as served upon her in the trial but she did not contest the suit and the suit p roceeded ex parte against her. 5. Against the said petition no. 855/2010 the appellants put an obj ection contending inter alia that the pro forma defendant no. 2 is the daughte r of the original owner of the suit property and as such she is a necessary pa rty since she has been arrayed as a pro forma defendant no. 5 in the original s uit. In regard to service of summons on pro forma defendant no. 2 the address ha s been clearly mentioned and there is every possibility that the summon would be served upon her and prayed for rejection of the petition. 6. The petition no. 855/2010 on the file of the learned District Ju dge Nagaon came up for consideration on 06.04.2011 and the learned appellate cou rt allowed the petition of the respondent-plaintiff thereby striking out the na me of the pro forma defendant no. 2 in exercise of power under Order I Rule 10(2 ) of the Code holding that since no relief was sought for against the pro forma defendant No. 2 who had never contested the suit by filing written statement an d in the appeal also no relief has been sought for against the pro forma defenda nt No. 2, more so, no relief has been granted in favour of or against her by the Court in the original suit, which was decreed on 23.10.2009, she is not a neces sary party and the controversy between the parties can be effectively and comple tely adjudicated upon without her presence, inasmuch as, the appellants took ste ps for service of notice on the pro forma defendant no. 2 on several occasions, but the notices could not be served upon her and those were returned unserved, h ence there is no impediment in striking out her name from the memorandum of appe al which order is now under challenge before this court. 7. Heard Mr.D.Mazumdar, the learned counsel appearing for the petit ioner, who has argued the matter at length and would submit that the leaned appe llate court has committed illegality in striking out the name of the pro forma defendant no. 2 who is the daughter of late Poonam Chand Agarwalla and has a s hare in property under dispute and in her absence the appeal cannot be effectua lly and completely adjudicated upon and hence impugned order is required to be i nterfered with under revisional jurisdiction. 8. Before going into the matter in controversy, proviso to Order XL I Rule 14(4) of the Code being relevant is quoted hereunder: (4) Notwithstanding anything to the contrary contained in sub-rule (1), it shal l not be necessary to serve notice of any proceeding incidental to an appeal on any respondent other than a person impleaded for the first time in the appellate court, unless he has appeared and filed an address for the service in the court of first instance or has appeared in the appeal. The proviso as quoted above postulates that no notice need be served on the defe ndant in the appellate Court who did not appear at the first instance and trial proceeded ex parte in the trial court. 9. In the context of Order I Rule 10(2) coupled with Order XLI Rul e 14(4) of the Code where no relief has been sought for against any party in the suit and who remained absent in spite of notice served in the trial and t he trial proceeded ex parte, the summon is not required to be served upon th at party in the appeal. 10. This is a suit of 1995 and the case is pending since long. There fore there is no illegality committed by the learned appellate court in striking out the name of the pro forma defendant no. 2 from the cause title of the memor andum of appeal in exercise of power under Order I Rule 10 (2) of the Code wher ein the court is empowered at any stage of the proceedings either upon or witho ut the application of either party be struck of whose presence before the cour t is not necessary in order to enable the court effectually and completely to a djudicate upon and settle all the questions involved in the suit. 11. In the instant revision the learned court has rightly exercised the power under Order I Rule 10(2) of the Code by striking out the name of the p ro forma defendant no. 2 from the cause title of appeal and hence there is no j urisdictional facts required to be interfered with in exercise of power under Article 227 of the constitution of India. 12. In the result, the revision petition being found to be devoid of merit, the same is dismissed. No costs.