Nikhil Jalan v. Sumitra Jalan

16. Vimla Kajaria D/O Late Hira Lal Jalan And W/O Sri Vishwanath Prasad Kajaria Resident Of No. S.N. 15/119, Rishi Pattam Marg, Sarnath, District- Varansi (U.P)

17. Mukesh Lohia S/O Late Hira Lal Jalan And W/O Sri Raghunath Prasad Lohia Resident Of A-1, Apartment Flate No. 7/76, 270, Walkeshwar Road, Bombay.

18. Hitesh Lohia S/O Late Hira Lal Jalan And W/O Sri Raghunath Prasad Lohia Resident Of A-1, Apartment Flate No. 7/76, 270, Walkeshwar Road, Bombay.

19. Varsha Lohia D/O Late Hira Lal Jalan And W/O Raghunath Prasad Lohia Resident Of A-1, Apartment Flate No. 7/76, 270, Walkeshwar Road, Bombay.

20. Nirmala Kauntia D/O Late Hira Lal Jalan And W/O Ashok Kumar Kauntia Narmada Apartment, 8th Floor, Dak Bungolow Road On The Junciton Of Exhibition Road, P.O, G.P.O- District- Patna. .... .... Opposite Party/s Patna High Court C.R. No.159 of 2012 (5) dt.30-01-2013 2 ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER

05. 30-01-2013 Heard Mr. Jitendra Singh, learned Senior Counsel appearing on behalf of the petitioner and Mr. Dinesh Kumar, learned counsel appearing for the opposite parties. This Civil Revision application is directed against the order dated 08.05.2012 passed in Title Partition Suit No. 472 of 1993, whereby the learned court below has rejected the application filed by the petitioner dated 19.03.2012 praying for abatement of the suit by reason of non-substitution of the plaintiff no. 1 Late Murli Manohar Jalan. The suit in question was filed by the plaintiff i.e. Late Murli Manohar Jalan, his wife plaintiff no. 2 Sumitra Jalan and their sons Harish Jalan and Ravi Jalan seeking partition of the properties. While the matter was pending consideration Murli Manohar Jalan deceased on 17.02.2005. An application was filed by the plaintiff no. 2 Sumitra Jalan for bringing on record Vinita Jalan as the other legal heirs i.e. the wife and the two sons were already on record. It is stated that the said petition which was filed on 25.04.2005 was never pressed and was rejected by order passed on 22.11.2006. The said application was followed by a second application filed on 15.01.2007 praying for recall of the order dated 22.11.2006 and which again was never pressed. It is Patna High Court C.R. No.159 of 2012 (5) dt.30-01-2013 3 submitted that thereafter plaintiff no. 2 filed a third application on

16.04.2007 praying for expunging the name of plaintiff no. 1 Murli Manohar Jalan, defendant no. 2 Satya Bhama Jalan and defendant no. 4, Uma Bai Jalan who had deceased during the pendency of the suit. The prayer was allowed by the learned court below by order dated 03.06.2008 and the names of the plaintiff no. 1 and the defendant nos. 3 and 4 were expunged at the risk of the plaintiff no. 2. As the plaintiff no. 2 had sought expungment of the plaintiff no. 1 while leaving behind the daughter Vinita Jalan, the defendant no. 9 who is petitioner before this Court filed an application on 19.03.2012 praying for abatement of the suit in such circumstances. It is submitted that the plantiff no. 2 instead of responding to the said application filed a fresh substitution application under Order 22 Rule 3 of the Code of Civil Procedure read with Section 151 thereof praying for substitution of Vinita Sahu. While the two applications were pending consideration a third application came to be filed by Vinita Jalan herself on 26.03.2012 under Order 1 Rule 10 of the Code of Civil Procedure seeking impleadment in the suit as plaintiff no. 4. The learned court below after considering the third application by the impugned order dated 08.05.2012 while rejecting the application filed by the plaintiff no. 2 seeking impleadment of Vinita Jalan has also rejected the application of Patna High Court C.R. No.159 of 2012 (5) dt.30-01-2013 4 the defendant no. 9 seeking abatement of the suit by non- impleadment of Vinita Jalan and by the same order has allowed the petition filed by Vinita Jalan seeking impleadment as a plaintiff. It is in the said circumstances that the present application has been filed. Mr. Jitendra Singh, learned Senior Counsel appearing for the petitioner has while relying upon a judgment of this Court reported in AIR 1973 Patna 399 (Chulhiya & Anr. vs. Nanipat Dass & Ors.) submitted that the non-impleadment of the daughter after the death of plaintiff no. 1 had rendered the suit not maintainable and as on the request of plaintiff no. 2 itself the name of plaintiff no. 1 was expunged without bringing all the heirs on record, the suit would be deemed to have been abated. A plea of minority of the two sons of the deceased plaintiff no. 1 who was under his guardianship and even after attaining majority had not been discharged from the same, was sought to be raised by Mr. Singh but as that is not the subject matter of the impugned order, this Court would not be drawn in the said submission nor would express any opinion thereon. The fact remains that the suit was brought by the plaintiff no. 1 alongwith his wife and two sons seeking partition in the suit property and even when the plaintiff no. 1 had deceased, his claim continued to be represented by his wife and two sons and thus the right to sue subsisted. The Patna High Court C.R. No.159 of 2012 (5) dt.30-01-2013 5 question raised in the present application is whether or not by non- impleadment of Vinita Jalan, the daughter of the deceased plaintiff no. 1 and the plaintiff no. 2 resulted in abatement of the suit. The answer obviously is in the negative since the estate of the deceased was already being represented through his wife and sons and the right to sue was existing. In the circumstances the action of the plaintiff no. 2 in not taking sufficient steps to bring Vinita Jalan on the record of the proceedings would obviously not alter the position more so when the said Vinita Jalan has herself moved the court by filing the application seeking impleadment and which has since been allowed. Thus the abatement, if any, stood removed by the order allowing the impleadment of Vinita Jalan. A somewhat similar issue came for consideration before the Supreme Court in a case reported in 2003(10) SCC 691 (Mithailal Dalsangar Singh & Ors. vs. Annabai Devram Kini & Ors.) and paragraph 10 is being quoted hereinbelow for ready reference: “10. In the present case, the learned trial Judge found sufficient cause for condonation of delay in moving the application and such finding having been reasonably arrived at and based on the material available, was not open for interference by the Division Bench. In fact, the Division Bench has not even reversed that finding; rather the Division Bench has proceeded on the reasoning that the suit filed by three plaintiffs having abated in its Patna High Court C.R. No.159 of 2012 (5) dt.30-01-2013 6 entirety by reason of the death of one of the plaintiffs, and then the fact that no prayer was made by the two surviving plaintiffs as also by the legal representatives of the deceased plaintiff for setting aside of the abatement in its entirety, the suit could not have been revived. In our opinion, such an approach adopted by the Division Bench verges on too fine a technicality and results in injustice being done. There was no order in writing passed by the court dismissing the entire suit as having abated. The suit has been treated by the Division Bench to have abated in its entirety by operation of law. For a period of ninety days from the date of death of any party the suit remains in a state of suspended animation. And then it abates. The converse would also logically follow. Once the prayer made by the legal representatives of the deceased plaintiff for setting aside the abatement as regards the deceased plaintiff was allowed, and the legal representatives of the deceased plaintiff came on record, the constitution of the suit was rendered good; it revived and the abatement of the suit would be deemed to have been set aside in its entirety even though there was no specific prayer made and no specific order of the court passed in that behalf.” The said pronouncement by itself answers issue posed before this Court. Similar view has also been expressed in AIR 1971 SC 742 (Mahabir Prasad vs. Jage Ram & Ors.). Relevant portion of paragraph-6 is being quoted hereinbelow for ready reference: “6.…..… Where in a proceeding a party dies and one of Patna High Court C.R. No.159 of 2012 (5) dt.30-01-2013 7 the legal representatives is already on the record in another capacity, it is only necessary that he should be described by an appropriate application made in that behalf that he is also on the record, as an heir and legal representative. Even if there are other heirs and legal representatives and no application for impleading them is made within the period of limitation prescribed by the Limitation Act the proceeding will not abate. On that ground also the order passed by the High Court cannot be sustained.” The application of the said Vinita Jalan having been allowed and she having come on record as plaintiff no. 4, the issue of abatement if any was taken care of would be deemed to have been set aside. Even otherwise the nature of the suit was such that the plaintiffs were merely representing the estate of the deceased and the non-impleadment of Vinita Jalan in the present suit would not have taken away her right to seek similar relief in an independent suit. That being the position no legal infirmity or material irregularity can be found in the order impugned and this application is accordingly disposed of. S.Sb/- (Jyoti Saran, J)