Research › Search › Judgment

Jharkhand High Court · body

2011 DIGILAW 44 (JHR)

Uday Lal Sahu @ Uday Kumar Sahu v. Kailash Chand Jain

2011-01-20

POONAM SRIVASTAV

body2011
Order Heard counsel appearing on behalf of the petitioner as well as counsel for the respondents. 2. Pleadings have been exchanged. The writ petition has been listed for 'Admission' and as agreed between the parties, I proceed to decide the matter finally at the stage of 'Admission' itself. Respective counsel have also agreed to argue the case to resolve the controversy finally. 3. The grievance of the petitioner-defendant is that in the original Title Suit No. 70A of 1982, an order was passed on 26th March, 2010 by the Subordinate Judge-VI, Hazaribagh substituting the heirs of the deceased/appellant. 4. The facts are an injunction suit was instituted against two defendants namely Asharfi Lal Sahu and Chandrakanta Devi. The defendant no. 2 Chandrakanta Devi died and by means of the impugned order, her heirs have been allowed to be substituted. The substitution application preferred before the Court below was allowed and the same is the subject matter of dispute in the instant writ petition. The original suit was decreed and" the first appeal against the said order was dismissed. The matter has been remanded to the Trial Judge by the High Court in a second appeal. 5. This is a case where the defendant no.1 Asharphi Lal Sahu is also reported to be dead. The objection of the learned counsel is two-fold: 1. First, that in the substitution application it was not declared that the 'right to sue' exists; since and the injunction was granted against the two contesting defendants and also in favour of the two plaintiffs in persona and therefore, in absence of a specific assertion that "right to sue survives", the substitution could not be allowed. Therefore, the suit should stand abated. 2. The second objection is that the petitioner's were not noticed on the substitution application. 6. The counsel for the petitioner has cited decision in the case of Korarichand Motichand Shah vs. Fakirbhai Kariabhai Koli and Others reported in AIR 1995 Bombay 102 in support of his contention. In this case, there were several defendants and an interim injunction was granted but after death of one of the defendants, the other surviving defendants' right continued to exist and therefore, the Court dispelled the objection raised in the said substitution application. In this case, there were several defendants and an interim injunction was granted but after death of one of the defendants, the other surviving defendants' right continued to exist and therefore, the Court dispelled the objection raised in the said substitution application. Assertion of the learned counsel is that in the instant case, both the plaintiffs were dead and therefore it was necessary to mention whether the 'right to sue' continues to exist or not. 7. The counsel for the petitioner has further cited decision of the Punjab and Haryana High Court in the Fase of M.H.B. Hanuman Mandir, Hissar vs. Punjab Wakf Board and Others reported in AIR 1984 Punjab and Haryana Page 239. In this case also, the question of right to sue survived and the Punjab and Haryana High Court stated that there were several defendants and therefore, the objection was refused. 8. The counsel for the petitioner has further relied upon another decision Koodalmanickam In Devaswom Managing Committee vs. Thachudaya Kaimal alias Manickan Keralan (Dead) by Lrs. reported in (1996)2 SCC 680 . This decision is on the question of abatement where the right granted to the claimant was in personam and the effect of death of the said claimant in the appeal was liable to abate. The Supreme Court observed that the suit filed by sole respondent against appellant committee claiming that the properties were given to him in personam for his personal benefit under a decree of British resident for the State of Travancore and Cochin and as such, he was entitled to enjoy its income or usufruct during his tenure. Tile claim was allowed but during the pendency of the second appeal, the respondent died and the property was taken over by the appellant. The Apex Court held that the right of the respondent ceased to exist as it was in personam and therefore, the appeal should abate. 9. I have gone through the aforesaid judgments. It is apparent that this is not the case at hand. In the present case, suit for injunction was instituted by two plaintiffs against the defendants was preferred and both are dead. 9. I have gone through the aforesaid judgments. It is apparent that this is not the case at hand. In the present case, suit for injunction was instituted by two plaintiffs against the defendants was preferred and both are dead. But from perusal of the plaint, it is apparent that in the relief clause, the word agent, his men or any other person claiming through the defendant' has been used and therefore, the heirs of the defendants who are sought to be substituted by means of substitution applicant, can very well be treated to be the agent or any other man of the defendant against whom the injunction was granted. The suit was admittedly decreed and therefore, if the substitution is refused and the matter being again at the trial stage, it is evident that it is only the petitioner who will stand benefitted if the substitution is refused. The objection to the substitution of the heirs of the defendant is only on account of this reason. 10. In my view, since I am sitting in a discretionary jurisdiction under Article 226 of the Constitution of India, I have also to adjudge and balance 'the equities' between the two parties and therefore, I am of the considered view that it does not call for any interference. Let the matter be contested on merit. The heirs of the deceased defendant Chandrakanta Devi be substituted as defendants. 11. With the aforesaid observations, the writ petition stands disposed of.