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1975 DIGILAW 371 (CAL)

Md. Israil v. S. M. Amirul Islam

1975-12-17

RABINDRA NATH BHATTACHARYA

body1975
JUDGMENT The judgment of the Court was as follows : This is an application for addition of a party in the category of opposite parties in a revision case. The petitioner is Md. Israil who is the petitioner in the revisional application. 2. Originally both the plaintiffs, who are the joint Mutwalis as alleged, were made parties, but when the petitioner has come to know that one of the opposite parties, namely, S. M. Amirul had already died during the pendency of the suit and in fact in his place was substituted his son Waliul Islam. alleged to be a joint Mutwalli, he filed the present application for addition of the said Woliul Islam. The case of the petitioner is that inadvertently the name of Amirul Islam was stated to be opposite party no.1 although, in fact he had died already. By the present application the petitioner Md. Israil wants to add Waliul Islam as one of the opposite parties. 3. I have heard Mr. behalf of the petitioner and of the opposite parties. 4. Mr. Bhattacharjee's opposition is that when Waliul had already been substituted in place of Amirul Islam, it must be due to the negligence on the part of the petitioner that he was not mentioned as one of the opposite parties in the revisional application. His contention is that when at the time of filing of the revisional application he was not made a party, he cannot be added now, as the application has already become non maintainable. Mr. Islam has argued that in revisional application Order 22 of the Civil Procedure Code is not applicable. 5. I have been taken through the Order 22 of the Code of Civil Procedure. From the plain reading of the provisions it appears that there is provision for sub5titution in case of Suits and appeal, and some other matters but not in case of revisional application filed under section 115 of Islam, the learned Advocate appearing on also Mr. Bhattacharjee appearing on behalf the Civil Procedure Code. Revisional applications are not original proceedings. This is clearly a discretionary matter with the court. Bhattacharjee appearing on behalf the Civil Procedure Code. Revisional applications are not original proceedings. This is clearly a discretionary matter with the court. If for the disposal of the revisional applications, the High Court thanks that for end of justice any party has got to be added or if at the instance of any of the parties any substitution is necessary though belated, for ends of Justice certainly and for proper decision the High Court should allow substitution or addition of the parries. There can be no question of limitation in this respect. In this connection Mr. Islam has drawn my attention to the decision of the Full Bench of the Rajasthan High Court in the case of (1) Babulal and any. v. Manilal reported in AIR 1953 Raj at page 169. In that case a similar question arose as to whether the provisions of Order 22 of the Code of Civil Procedure would be applicable in revisional applications. The court agreed with the decision in the case of Kanhaiyalal v. Mangal singh decided by that court. I quote below the relevant portion of the judgment: "We are of the opinion that O. 22, Civil P. C. applies to the case of suits and by virtue of R. 1 I also to the cases of appeals. It does not govern the cases of revisional applications. Section 141, Civil P.C. also does not make the provisions of O.22, Civil P.C. applicable to the cases of revisions as it applies only to the cases, or the proceedings of original nature. Consequently Art. 176 Limitation Act, also does not apply to such cases. This question has been thoroughly considered in the judgment of this court in 'Kanhaiyalal v. Mangalsingh referred to above and we agree with the principles laid down therein." 6. Coming to our Case, on consideration of the affidavits, counter affidavits and affidavit-in-reply I find that inadvertently the name of Waliul islam had been omitted in the original application and in his place was mentioned Amirul Islam. I also find that for ends of justice and for proper decision Waliul Islam should be made one of the opposite parties. In these circumstances, I allow the petition of Md. Israil for the addition of the party as prayed for. 7. The application is thus allowed and the name of Waliul Islam be noted. I also find that for ends of justice and for proper decision Waliul Islam should be made one of the opposite parties. In these circumstances, I allow the petition of Md. Israil for the addition of the party as prayed for. 7. The application is thus allowed and the name of Waliul Islam be noted. I pass no order as to costs in this application. Parties are at liberty to take steps for early hearing of this revision.