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Civil Rule No. 1059 of 1966, decided on 14th March 1967.

‑Suit for partition‑Distinct features‑Cause of action for partition suit, always recurring‑Such a suit can be brought even after abatement of a previous suit‑Substitution of heirs of one of deceased co‑sharers not sought within period of limita tion‑Court in such a ease can and ought to invoke its power under O. I, r. 10 and allow heirs of deceased to be added as parties.

A suit for partition has some distinct features. In such a suit every co‑sharer, whether he is included in the category of plaintiffs‑defendants, stands in the position of a plaintiff: Moreover, cause of action for such a suit is always recurring. Rule 9 of Order XXII of the Code of Civil Procedure provides that where a suit abates no fresh suit shall be brought on the same cause of action. As there is always a recurring cause of action for a suit for partition, such a suit can be brought even after the abatement of a previous partition suit. That being so, the ends of justice demand that the parties in a suit for partition should not be driven to a fresh suit only on the ground that substitution of the heirs of one of the deceased plaintiffs or defendants was not sought for well in time. In such a case the Court can and ought to invoke its power under Order I, rule 10 of the Code of Civil Procedure and allow the heirs of the deceased plaintiff or defendant to be added as parties, so that the suit for partition may not be defeated for defect of party and the parties may not be driven to another suit.

Muhammad Ansar Ali for Petitioner.

Latifur Rahman for the Opposite‑Parties Nos. 1 to 5 and 8.

Dates of hearing : 13th and 14th March 1967.

.‑This is an application under section 115 of the Code of Civil Procedure. The petitioner is defendant No. 1 in the partition Suit No. 35 of 1965 of the Court of the sub ordinate Judge, Kushtia. The suit was brought by as many as 6 plaintiffs. Of them, plaintiff No. 1 died on 13‑8‑65 leaving his widow Motijannessa as his heir. No application was made within the prescribed period of limitation for making the said widow a party to the suit. After the expiry of the prescribed period, the remaining plaintiffs 2 to 6 filed an application for expunging the name of the plaintiff No. 1 from the plaint and impleading his widow as defendant No. 4. This application was allowed by the trial Court by its Order No. 7 dated 11‑6‑1966. The present revisional application by defendant No. 1 is against that order.

Mr. Ansar Ali, learned Advocate for the petitioner submits that the widow of the deceased plaintiff No. 1 not having been made a party to suit within the prescribed period of limitation the suit abated and as such the trial Court acted illegally and with material irregularity in allowing the prayer for impleading the widow as defendant. A suit for partition has some distinct features. In such a suit every co‑sharer, whether he is included in the category of plaintiffs‑defendants, stands in the position of a plaintiff. Moreover, the cause of action for such, a suit is always recurring. Rule 9 of Order XXII of the Code of Civil Procedure provides that where a suit abates no fresh suit shall be brought on the same cause of action. As there is always a recurring cause of action for a suit for partition, such a suit can be brought even after the abatement of a previous partition suit. That being so, the ends of justice demand that the parties in a suit for partition should not be driven to a fresh suit only on the ground that substitution of the heirs of one of the deceased plaintiffs or defendants was not sought for well in time. In such a case the Court can and ought to invoke its power under Order I, rule 10 of the Code of Civil Procedure and allow the heirs of the deceased plaintiff or defendant to be added as parties, so that the suit for partition may not be defeated for defect of party and the parties may not be driven to another suit. In the instant case, the trial Court exactly exercised its power under Order I, rule 10 and allowed the widow of the deceased plaintiff No. 1 to be added as defendant for effectual determination of the suit for partition. We do not, therefore, think that the trial Court acted illegally or with material irregularity.

The Rule is, therefore, discharged without any order as to costs.

Let the record be sent down immediately to the trial Court.

.‑I agree.

S. Q.

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