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2016 DIGILAW 3269 (ALL)

Sajan Kumar v. Devi Ram Bhatia

2016-09-23

ANJANI KUMAR MISHRA

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JUDGMENT Anjani Kumar Mishra,J. Heard learned counsel for the petitioner and learned Standing Counsel for the State-respondents. This writ petition under Article 227 of the Constitution of India seeks quashing of the order dated 09.02.2015 passed by the Additional Civil Judge ( Senior Division), Mathura in Original Suit No.71 of 1997 as also the revisional order dated 08.08.2016 passed by the Additional District Judge, Mathura, whereby the order of the Trial Court has been affirmed. The facts of the case briefly stated are that the plaintiff respondents preferred a suit for specific performance of an agreement to sell dated 26.11.1997 executed by Sri Dwarika Nath in their favour. Subsequent, Dwarika Nath executed a sale deed in favour of the petitioner, despite the existence of the agreement to sell and therefore the petitioner was also impleaded as a defendant in the suit. During the pendency of the suit, Dwarika Nath died and was duly substituted by his heirs and legal representatives. Subsequently one of the several heirs of Dwarika Nath, namely, Dau Dayal also died. The petitioner filed an application for abatement of the suit on the ground that the legal representatives of the deceased heir of Dwarika Nath was not substituted within the limitation provided there for. The plaintiffs on the other hand appear to have filed an application stating that there was no necessity of bringing the heirs of the deceased on record and that only an endorsement his name was required to be made before his name that he was dead. The Trial Court by its order dated 09.02.2015 allowed the application of the plaintiff and rejected the abatement application filed by the petitioner. This order of the Trial Court has been affirmed upon dismissal of the revision filed by the petitioner vide order dated 08.08.2016. Hence this writ petition. The contention of learned counsel for the petitioner is that since admittedly one of the defendants in the suit had died, the suit had abated by operation of law, and in holding to the contrary, the Courts below have committed manifest illegality calling for interference by this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. It has also been submitted that one of the reasons given for rejecting the abatement application was that the deceased had not filed any written statement and therefore, it was not necessary to substitute him. It has also been submitted that one of the reasons given for rejecting the abatement application was that the deceased had not filed any written statement and therefore, it was not necessary to substitute him. This reasoning is illegal because the deceased have been substituted in place of Dwarika Nath who had already filed his written statement. Therefore, there was no necessity for his heir to have filed any fresh written statement. Although, this reasoning has been given by the Trial Court yet I do not consider it a good enough ground warranting interference with the impugned orders. It is settled law that there is no abatement, on the death of one of several heirs of an original party because the estate of the deceased is still represented by the other heirs. This is the precise position in the case at hand. Since in view of the settled legal position, there was no abatement of the suit upon the death of the heir of the Dwarika Nath, the abatement application filed by the petitioner was rightly rejected. There is yet another aspect of the matter. It is admitted that Dwarika Nath, who had executed the agreement to sale in favour of the plaintiff respondent had executed a sale deed of the same property in favour of the petitioners, therefore, the petitioner has acquired right, title and interest in the land which is subject matter of the suit by means of the sale deed in his favour and he is competent to represent the original defendant, Dwarika Nath. Besides, the revisional Court has further observed that the deceased heir of Dwarika Nath had never put in appearance in the suit. It has, relying upon Order 22 Rule IV C.P.C. rightly held that a Court can exempt the plaintiff from substituting a defendant, who had failed to file a written statement or having filed it, has failed to appear and contest the suit and a judgment may be pronounced against such defendant, notwithstanding his death, which judgment shall have the same force and affect as if it has been pronounced before his death. There is no averment in the writ petition that the deceased heir of Dwarika Nath, namely, Dau Dayal had ever put in appearance in the suit. In the absence of such averment, the orders impugned have rightly been passed and suffer from no error, warranting interference. There is no averment in the writ petition that the deceased heir of Dwarika Nath, namely, Dau Dayal had ever put in appearance in the suit. In the absence of such averment, the orders impugned have rightly been passed and suffer from no error, warranting interference. Learned counsel for the petitioner has placed reliance upon the judgment in the case of Union of India Vs. Ram Charan(deceased) through his legal representatives, AIR 1964 Supreme Court 215. This judgment holds that a Court has no inherent power to add legal representatives; an application for bringing the legal representatives on record is necessary and that the limitation starts from the date of the death of the respondent and not from the date, knowledge of death is acquired by the plaintiff or appellant, as the case may be. In my considered opinion, the judgment cited has no application in the facts and circumstances of the instant case. In view of the above discussion, this writ petition fails and is dismissed.