1. This was a suit for rent against several defendants. One of these defendants was dead before the service of summons. The fact of the death was brought to the notice of the Court and there was an application to bring in his heirs. No further steps were taken by the Court and a decree was passed against the deceased defendant as if he were living.
2. In the second Court the alleged heirs of the deceased Madan Jha were brought in as defendants and there it was contended that they had been brought in after the expiry of the period allowed by law, that the application for substitution was, therefore, barred by limitation and that the whole suit ought to fail. The learned District Judge gave effect to this plea although the only part of the case that was under appeal before him was a fraction of the claim relating to certain muafi.
3. The learned Judge was wrong in dismissing the whole suit. One of the defendants was not brought in time and the whole suit has been dismissed although a part only of the suit was under appeal before him.
4. As regards Madan Jha, we think he was only one of several joint tenants and it was quite competent to the plaintiff to maintain his suit against any number of several joint tenants and, therefore, the suit against the other defendants was maintainable. We may bring the case of Jogendra Nath Roy v. Nogendra Narain Nandi 11 C.W.N. 10216 to the notice of the learned District Judge on this point.
5. The alleged heirs of Madan Jha must be expunged from the record and the suit must be taken as one against the other defendants. We do not say anything as to what bearing this giving up of one of the joint tenants may have upon the sale that might in future take place; but in the present instance the suit will go on against the other defendants and the case will be sent back to the lower appellate Court for a decision of the whole case before him on the merits.
6. Costs to abide the result.
7. The heirs of Madan Jha will bear their own costs.