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C/M. Rama Devi Balika Inter College Thru' Its Principal v. Mohd. Iqbal Khan And Others - WRIT - C No. 2738 of 2006 [2006] RD-AH 2329 (31 January 2006)


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Court No. 23

Civil Misc. Writ Petition No. 2738 of 2006

Committee of Management,

Rama Devi Balika Inter College,

Meerapur, Allahabad.............................................................................Petitioner


Mohd. Iqbal Khan & others..............................................................Respondents


Hon'ble Umeshwar Pandey, J.

Heard Sri Ravi Kant, learned Senior Advocate assisted by Sri Vishal Agarwal.

This petition under Article 226 of the Constitution of India has been moved challenging the order dated 26.11.2005 passed by the District Judge in Civil Revision No. 674 of 2005 rejecting the revision of the petitioner.

In a suit for permanent injunction the plaintiff had died. When a matter in revision arising out of the same suit was pending before the District Judge, the substitution application of the deceased plaintiff was moved before the revisional court, which was allowed and subsequent amendments were incorporated in the memo of revision. Thereafter, the revision was decided and the record was sent to the trial court where the petitioner-defendant moved application  (79-C) for abating the suit for not recording substitution in the plaint. The trial court rejected this application on the ground that substitution had already been recorded in the proceedings of revision before the District Judge. It is against that order that the petitioner preferred the aforesaid civil revision in which the impugned order has been passed.

Sri Ravi Kant, the learned Senior Advocate submits that even though the substitution of the deceased plaintiff was recorded in the revisional proceedings yet it was incumbent upon the plaintiff to have moved the trial court also for such substitution and in case he had failed the consequences should follow.

It is true that a formal substitution application is required to be given in the trial court also for the purpose of incorporating amendment in the array of the parties in the plaint. But in case the plaintiff has failed to move this formal application it will not amount abating the suit. In the present view of the matter the application (79-C) moved by the petitioner had absolutely no merit and it has rightly been rejected by the courts below.

As regards formal amendment in the plaint by way of substitution of the deceased plaintiff it is definitely a must. It has to be recorded and for that purpose a formal application which may not amount to be application under Order XXII Rule 3 C.P.C. has to be moved and this can be done at any stage subsequent to the disposal of the earlier revision which was pending before the District Judge. Therefore, in case the respondent-plaintiff has not yet moved the trial court for incorporating this formal amendment, he would move it as early as possible.

With these observations, this writ petition is disposed of.




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