AMBAJI Vs. SHORANAPPA

JUDGEMENT

(1.) This is a petition under S.115 CPC. to revise the reversing judgment of the Civil Judge, Bidar, holding that the plaintiffs suif for permanent injunction has abated.

(2.) The events leading to the petition are these: One Ambaji and Neelamma instituted O.S.No.68 of 1970 in the Court of Munsiff, Basava-kalyan, stating that they are the joint owners of the suit property and 'that the defendant was interfering with their possession. During the pendency of the suit, the second plaintiff transferred her undivided interest under a registered sale deed dt. 10-1-1969 in favour of one Kashappa. On 25-7-1970, the second plaintiff died. The application to bring her legal representatives on record was not filed within the time allowed by law. On 26-3-1971, the 1st plaintiff filed an application under Or.XXII, Rule 2, CPC, requesting the Court to make necessary entries on record that the right to sue survived to him alone and that he may be permitted to proceed with the suit. On that very day, the transferee Kashappa filed an application under Order XXII, Rule 10 CPC. praying for leave to continue the suit. These two applications were allowed by the trial Court on 19-6-1971 without hearing the defendant, but later at the instance of the defendant, the Court reconsidered its order and dismissed the application of the first plaintiff and allowed the application of the transferee. Against the said order, the defendant preferred an appeal before the Court of the Civil Judge, Bidar. It was contended before the learned Judge that the application filed by the transferee under Order XXII, Rule 10 CPC., could not have been allowed since the suit has abated as the legal representatives of the second plaintiff were not brought on recqrd within time. The learned Judge accepted that contention. He said that by the time the transferee made an application under Or.XXII, Rules 10 CPC. the plaintiffs' suit was not pending as it had already abated. He further held that the right to sue did not survive to the first plaintiff on the death of his co-owner the second plaintiff. This decision of the learned Civil Judge is challenged in this revision petition.

(3.) The first question arising for my consideration is whether the, right to sue did not survive to the first plaintiff on the death of the second plaintiff. If the right to sue did not survive to the first plaintiff, the application of the transferee could not have been entertained because under Or.22, Rule 10, the transferees can obtain leave only to continue the suit. If the suit has already abated there was no suit which could be continued because the abatement terminates" the suit and disposes of the planitiffs' plaint as if the suit has been dismissed without hearing. Leave to continue a suit cannot be given after the suit has terminated.