ANANT CH. SAHU v. DHRUBA CH. PADHAN (DEAD) — 1989 DIGILAW 76 (ORI)

D. P. MOHAPATRA, J. ( 1 ) THE short question that arises for consideration in this revision petition is whether in the facts and circumstances of the case the court below was right in holding that the suit abated in its entirety for non-substitution of the legal representatives of the deceased defendant No. 1. Dhruba Charan Padhan. ( 2 ) NARSINGH Sahu, father of petitioner No. 1 and Bhikari Chraran Sahu, petitioner No. 2 filed Title Suit No. 12 of 1973 in the Court of the Subordinate Judge, Nayagarh impleading Dhruba Charan Padhan as defendant No. 1, and opposite parties 2 to 14 as defendants 2 to 14. The plaintiffs prayed for declaring their title over the suit land; to permanently injunct defendants 1 to 14 from entering upon the suit lands and from disturbing possession of the plaintiff over the same. The gist of the plaintiffs' case set out in the plaint is that Khata Nos. 1 and 199 of village Gopinathpur initially belonged to two brothers, Raghu Sahu and Madhu Sahu, who were in separate possession of their respective shares. After the death of Raghu Sahu, his brother Madhu Sahu possessed his properties. On the death of Madhu Sahu in 1941, Chakradhar Sahu an outsider falsely claimed the properties of Madhu Sahu and Raghu Sahu as their heir. At that time Lokanath Sahu, the father of the plaintiffs in order to save the properties possessed the properties with consent of the landlord. He filed Title Suit No. 75 of 1950 and being unsuccessful in the trial court, filed Title Appeal No. 15 17/23 of 1955/54. In the appeal the learned District Judge declared that Chakradhar Sahu was not entitled to the properties of Madhu and Raghu as their heir. Thereafter at the instance of Chakradhar Sahu a proceeding under S. 145, Cr. P. C. (Cri. Misc. Case No. 167 of 1963) was initiated. In the revision arising out of the said proceeding, this Court declared possession of the plaintiffs father, Lokanath Sahu and in pursuance of the said decision possession of the suit properties was delivered to plaintiffs' father on 21-5-1966. Since then Lokanath Sahu and after his death, the plaintiffs have been in possession of the suit properties. In the revision arising out of the said proceeding, this Court declared possession of the plaintiffs father, Lokanath Sahu and in pursuance of the said decision possession of the suit properties was delivered to plaintiffs' father on 21-5-1966. Since then Lokanath Sahu and after his death, the plaintiffs have been in possession of the suit properties. According to the plaintiffs, these defendants have been creating trouble regarding plaintiffs' possession of the suit land though they have no manner of interest or possession over the said property. The defendants 1 to 14 in their joint written statement refuted the stand taken by the plaintiffs: denied their claim of exclusive title to the suit land asserted inter alia, that at the time of filing of the previous suit in 1950, the plaintiffs' father was not in possession of any portion of the suit lands. The defendant claimed to be bhag tenants of defendants 2 to 7 of the earlier suit and further claimed to be in cultivating possession of different parcels of the suit land as described in the schedules A and B to the written statement. They asserted that in some years Bhag pattas have been granted to them by the landlords. ( 3 ) WHILE the suit was pending in the trial Court, defendant No. 1, Dhruba Charan Padhan died. Admittedly his legal representatives were not substituted in the case. The plaintiff. No. 1. Narsingh Sahu also died during pendency of the suit and his legal representatives were substituted. Objection appears to have been taken to maintainability of the legal representatives of the deceased defendant. Dhruba Charan Padhan. In reply it was contended on behalf of the plaintiffs that the suit may be taken to have abated against deceased defendant No. 1 but that does not affect maintainability of the entire suit. The trial court on consideration of the matter upheld the objection and held that the suit abated in toto. ( 4 ) THE contentions noticed above were reiterated by the learned counsel appearing for the respective parties at the hearing of this case. ( 5 ) FROM the provisions under O. 22. Rule 4. The trial court on consideration of the matter upheld the objection and held that the suit abated in toto. ( 4 ) THE contentions noticed above were reiterated by the learned counsel appearing for the respective parties at the hearing of this case. ( 5 ) FROM the provisions under O. 22. Rule 4. C. P. C. and those in O. 1 R. 9 C. P. C. it is clear that where one out of the several detendants dies and the legal representative is not brought on the record within the time allowed by law, the effect of the non-joinder is that the suit abates as against that defendant only. How far the absence of the legal representatives of the deceased defendant will affect the rights of the plaintiff to obtain relief against the surviving defendant will depend upon the circumstances of the case and the relief sought. Some of the tests which have come to be accepted as relevant for judging the question whether a suit will abate in its entirety for non-impletion of the legal representatives of one of the defendants, who died during pendency of the suit are; (a) whether the deceased defendant was a necessary party in the suit; or in other words if the plaintiff could file the suit excluding the deceased defendant; (b) whether the decree which is to be passed in case the plaintiff succeeds in the suit will be rendered ineffective in absence of the legal representatives of the deceased defendant; and (c) whether there is liklihood of conflicting decrees coming into existence. The third test is not relevant for the present case. Since the defendant No. 1 died during the pendency of the suit in the trial Court before any decree could be passed in the suit and therefore, the question of conflicting decrees does not arise. For considering the first test the pleadings of the parties will have to be looked into. I have carefully perused the plaint and the written statement. It is the definite case of the plaintiffs that defendants 1 to 14 have been creating trouble in their possession over the suit land at the instigation of and being ill-advised by Chakradhar Sahu, though they have no manner of interest or possession over the suit land. I have carefully perused the plaint and the written statement. It is the definite case of the plaintiffs that defendants 1 to 14 have been creating trouble in their possession over the suit land at the instigation of and being ill-advised by Chakradhar Sahu, though they have no manner of interest or possession over the suit land. The case of the defendants on the other hand is that they are tenants in possession of the suit lands, different parcels of land being in possession of different sets of defendants. In the schedule of the written statement it is indicated that defendants 1 to 7 are in possession of the suit lands described in Schedule `a' and defendants 8 to 14 are in possession of suit lands given in Schedule `b'. The question is whether the plaintiffs could file the suit excluding the deceased defendant No. 1. If they were not apprehending any trouble from the said defendant or they had amicably settled the controversy with him, I see so difficulty why they could not do so. It is pertinent to note here that there is no prayer for recovery of possession of the suit land though by amendment the plaintiffs have included the prayer for declaration of their title over the same. In other words they were asserting their possesison over the suit land and simply wanted the defendants to be permanently injuncted from interfering with their possession of the property. The suit is not one involving claim of damages against joint tortfeasors nor is it one in which the plaintiffs' cause of motion is based on joint action of a subsisting nature by all the defendants. In such circumstances in my view, it was the option of the plaintiffs to implead all the defendants whom on the date of filing of the suit, they (plaintiffs) apprehended would create trouble in future. If they excluded some of the defendants while filing the suit, the disadvantage to the plaintiffs will be that even if they succeed, in the suit and get a decree for permanent injunction that will not be binding on the persons excluded from the suit. In such a suit there is always the possibility of persons other than the defendants interfering with the possession of the plaintiffs. In that case the plaintiffs may amicably settle the dispute with them or enter into fresh litigation. In such a suit there is always the possibility of persons other than the defendants interfering with the possession of the plaintiffs. In that case the plaintiffs may amicably settle the dispute with them or enter into fresh litigation. On the above analysis in my view, the answer to the question in the facts and circumstances of the case, is that the plaintiffs could file the suit without impleading Dhruba Charan Padhan as defendant. ( 6 ) THE other questions to be considered is since the legal representatives of Dhruba Charan Padhan are not impleaded whether the decrees for permanent injunction which may be passed by the court in the event of success of the plaintiffs in the suit will be rendered ineffective. In my view the answer to the questions has to be in the negative. If one of the reliefs sought in the suit was for recovery of possession, then it could reasonably be said that in view of the allegations of the plaintiffs, that all the defendants are unautorisedly in possessing of the property then a decree for recovery of possession without impleading legal representatives of the deceased defendant will be ineffective since it cannot be definitely said if deceased defendant was in possession of any particulars portions of the suit land and the other defendants could easily take the plea that the deceased defendant was in possession of the entire suit land. But such is not the case here. In the suit, as noticed earlier, no prayer for recovery of possession has been made by the plaintiffs. The reliefs sought for are declaration of plaintiffs' title to the suit lands and to permanently injunct the defendants from Interfering with their peaceful possession over it. Such a decree, cannot be rendered infructuous or ineffective merely on the ground of absence of legal representatives of one of the defendants who died during the pendency of the suit. ( 7 ) TO prop up my conclusion in the foregoing paragraphs, I would refer to a few decisions. Such a decree, cannot be rendered infructuous or ineffective merely on the ground of absence of legal representatives of one of the defendants who died during the pendency of the suit. ( 7 ) TO prop up my conclusion in the foregoing paragraphs, I would refer to a few decisions. In AIR 1934 All 716 (Shibban v. Alllah Mehar), it was held that in a suit for possession and injunction against trespassers the mere fact that one of the trespassers has died and his heirs have not been brought on the record does not make it impossible to pass a decree in favour of the plaintiffs against the trespassers who are before the court. Such decree would, of course, be against defendants in their personal capacity. This principle was reiterated by the Court in the case of Raj Himanshudhar Singh v. Ram Hitkari reported in AIR 1963 All 496 , wherein it was observed that the effect of a suit abating against one of two or more defendants is exactly the same as if he had not been impleaded as a defendant at all. Rule 4 of O. XXII deals with the death of one defendant out of two or more when the right to sue does not survive against the surviving defendants; if no application is made within the prescribed time for bringing on the record the legal representatives of the deceased defendant "the suit shall abate as against the deceased defendant" and cannot abate against the other defendants. A suit may fail against the other defendants on other grounds but it cannot abate as against them. If under a statute a suit cannot be filed without joining the deceased defendant, it will fail not on the ground that it abates but on the ground that it is not maintainable under the law unlelss he or his successors-in-interest is impleaded. If under a statute a suit cannot be filed without joining the deceased defendant, it will fail not on the ground that it abates but on the ground that it is not maintainable under the law unlelss he or his successors-in-interest is impleaded. This court in the case of Bhubaneswar Padhi v. Sri Venkateswara Mahaprabhu reported in (1971) 2 Cut W R 803, considering the provisions of O. 22, R. 4 read with O. 1, R. 9, C. P. C. observed that O. 1, R. 9, C. P. C. prescribed that no suit shall be defeated by the reasons of mis joinder or non joinder of parties and the court may in every suit deal with, the matter in controversy so far as regards the rights and interests of the parties actually before it. This will depend upon other circumstances. The tests generally applied are; is the deceased defendant a necessary party in whose absence the suit is bound to fail and the plaintiff could not have brought the suit for the reliefs claimed against those defendants who are all still before it; secondly whether the decree in favour of the plaintiff in case it is passed against the other defendants can be effectively executed in the absence of the legal representatives of the deceased defendant. ( 8 ) ON the analysis and discussions in the foregoing paragraphs, it is manifest that tile court below erred in holding that the suit abated in its entirety on the ground of non-substitution of the legal representatives of the deceased defendant No. 1, Dhruba Charan Padhan. The order is therefore unsustainable. Accordingly the revision petition is allowed and the impugned order is set aside. Parties are to bear their respective costs of this proceeding. Revision allowed.