Md. Umar v. Ugrah Singh

.... .... Opposite party/s ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER

03. 31-01-2013 Heard Mr. Hari Shankar Rai, learned counsel appearing on behalf of the petitioner. An issue of maintainability has been raised by the office and which by order dated 16.10.2012 was directed to be placed at the stage of admission of the application. Considering the nature of the order being questioned in the present proceedings and considering the fact that an order in favour of the petitioners would result in disposal of the suit itself on grounds of abatement, this Civil Revision application is held maintainable. This Civil Revision application is directed against the order Patna High Court C.R. No.184 of 2012 (3) dt.31-01-2013 2 dated 29.06.2012 passed in Title Appeal No. 140 of 2009, whereby the learned Ad hoc Additional District Judge-III, Gaya while allowing the appeal of the plaintiff-appellant who are opposite parties herein has been pleased to set aside the judgment and order dated 01.02.2006 passed by learned Subordinate Judge- I, Gaya in Title Suit No. 295 of 2004, whereunder the suit had been dismissed as having abated. Facts of the case as stated, in brief is that a Title Suit had been filed by the father of the present petitioners and some others giving rise to Title Suit No. 52 of 2002 for adjudication of their right and title over the suit property as also for declaring the entry in Revisional survey khatiyan as being wrong, illegal and void and for confirmation of possession over the suit property. A further prayer had been made for restoration of possession in case the plaintiffs were found to be dispossessed during the pendency of the suit. The suit was decreed ex parte vide judgment and decree dated 09.02.2004 and an attempt on the part of the defendants of the said suit for setting aside the ex parte decree was negated when their application filed under Order 9 Rule 13 of the Code of Civil Procedure was dismissed and which order was never questioned by the defendants in any other proceedings. It is stated that the judgment and decree having attained its finality, the Patna High Court C.R. No.184 of 2012 (3) dt.31-01-2013 3 present suit was instituted by the defendants of Title Suit No. 52 of 2002 for setting aside the judgment and decree passed in Title Suit No. 52 of 2002. While the Title Suit No. 295 of 2004 was pending plaintiff no. 1 Sidheshwar Singh deceased on 28.01.2005 and defendant no. 2 Md. Ali pre-deceased him on 08.01.2005. As no steps were taken by the plaintiffs for substitution of the plaintiff no. 1 or the defendant no. 2, hence an application was filed on behalf of the defendant-petitioners herein on 01.07.2005 under the provisions of Order 22 Rule 4(3) of the Code of Civil Procedure read with Section 151 thereof praying for dismissal of the suit on grounds of having abated by non-substitution of the plaintiff no. 1 and the defendant no. 2. The application was contested by the plaintiffs who while admitting the non- substitution of the plaintiff no. 1 Sidheshwar Singh submitted that as he was not survived by any legal heirs and his legal representatives were already on record as plaintiff nos. 2 and 3, hence there was no question of abatement as the right to sue survived in the remaining plaintiffs. It was thus submitted that in absence of any requirement of substitution of the plaintiff no. 1, the suit cannot be held abated and the objection was misconceived. Insofar as the non-substitution of the defendant no. 2 is concerned it was submitted on behalf of the plaintiff that they Patna High Court C.R. No.184 of 2012 (3) dt.31-01-2013 4 had no information regarding the death of defendant no. 2 and that in terms of the provision of Order 22 Rule 10(A) of the Code, it was duty of the counsel for the defendant to have brought this information to the court. It was thus submitted that no sooner this information was placed by defendant on 01.07.2005 that they filed an application on 15.09.2005 requesting the defendants to supply the names of the legal heirs of the defendant no. 2 which was not known to them and which has not been supplied. The learned trial court upon consideration of the rival contentions allowed the objection raised by the defendants and dismissed the suit as having abated by judgment and order dated 01.02.2006. The judgment and order dated 01.02.2006 passed by the learned Subordinate Judge-I, Gaya was questioned by the plaintiff under the provisions of Order 43 Rule 1K and L of the Code giving rise to Title Appeal No. 140 of 2009 and the learned appellate court below by the order impugned dated 29.06.2012 considering the legal position has been pleased to allow the appeal and restore the suit to its original position. I have heard learned counsel appearing on behalf of the petitioners and have perused the materials on record. The only issue which falls for consideration is whether the order impugned suffers from any legal infirmity or any material irregularity Patna High Court C.R. No.184 of 2012 (3) dt.31-01-2013 5 warranting interference. Insofar as the non-substitution of the plaintiff no. 1 is concerned, although no application for expunging the name of plaintiff no. 1 had been filed within time but as the plaintiff no. 1 had died issueless and the legal representatives were already on record as plaintiff nos. 2 and 3 hence there was no question of abatement as the right to sue vested in the remaining plaintiffs subsisted. Thus the objection raised by the defendant petitioners on the issue of abatement by non-substitution of the plaintiff no. 1, does not hold good and the order of the appellate court below suffers from no infirmity on this account. Insofar as the second issue is concerned, the provisions of Order 22 Rule 10A of the Code creates an obligation on the counsel for the defendants to supply information regarding death of the defendant during the pendency of the suit. The provision further creates an obligation on the court concerned to supply such information to the other side. It is a matter of record that the information of death of the defendant no. 2 for the first time was placed on record when a petition to that effect was filed by the defendant-petitioners on

01.07.2005 and within a period of 90 days therefrom the plaintiff requested the defendants to supply the name of the legal heirs by filing an application on 15.09.2005 well within the period Patna High Court C.R. No.184 of 2012 (3) dt.31-01-2013 6 stipulated under Article 120 of the Limitation Act. As the information was not forthcoming rather an objection was raised by the defendant-petitioners that the suit had abated by reason of non-substitution of the parties within the period stipulated, the learned trial court proceeded to adjudicate upon the issue of abatement and by the order dated 01.02.2006 held the suit abated and dismissed it accordingly. The learned appellate court below taking note of these relevant undisputed facts in the backdrop of the statutory provisions and upon recording satisfaction that no fault lay with the appellants in taking appropriate steps for bringing on record the legal heirs of the deceased parties concerned on record, has set aside the judgment and order of abatement passed by the trial court and the suit has been restored to its original position requiring the trial court to proceed in accordance with law. No infirmity or material irregularity can be found in the order impugned and this application is accordingly disposed of. S.Sb/- (Jyoti Saran, J)