MATA PRASAD MATHUR Vs. JWALA PRASAD MATHUR

JUDGEMENT

(1.) Leave granted.

(2.) The short question that arises for determination in this appeal is whether the suit filed by the plaintiffs-respondents seeking a decree for declaration, partition and injunction against the appellants abated on the failure of the plaintiffs to file an application for substitution of the Legal Representatives of Virendra Kumar one of the defendants. The trial Court, when approached by the plaintiff for deletion of the name of the deceased and setting aside of the abatement, held that the suit had abated in toto and accordingly dismissed the same. In an appeal filed by the plaintiffs against that order, the First Appellate Court held that the trial Court had not properly considered the issue in the light of the nature of the averments made in the plaint and the relief sought by the plaintiff. The Court accordingly set aside the judgment and order passed by the trial Court with the observation that the demise of Virendra Kumar and failure of the plaintiff to bring his legal representatives on record did not affect the maintainability of the suit. The High Court of Madhya Pradesh has affirmed that order, hence the present appeal.

(3.) Having heard learned counsel for the parties, we are inclined to agree with the order of the First Appellate Court that the suit had not abated no matter for a reason different from the one that prevailed with that Court. It is common ground that Virendra Kumar-defendant was proceeded ex parte as he had not appeared to contest the suit or file a written statement. Substitution of the legal representatives of such a defendant could be legitimately dispensed with by the trial Court in view of the provisions of Order XXII Rule 4 Sub-Rule 4, which is as under: