ASHGAR ALI Vs. MOHAMMAD TAQI

JUDGEMENT

(1.) This revision by the plaintiff under section 115 of the Code of Civil Procedure is directed against the judgment and order dated 7.3.1981 of the Subordinate Judge Delhi holding that the suit of the petitioner has abated.

(2.) . Briefly the facts are that on 5.6.1967 the plaintiff filed a suit for possession against the seven defendants namley, Mohd. Taqi, Mohd. Naqi, Munnan, Mashuq Ali, Abdur Razzaq and Municipal Corporation of Delhi alleging that he had been in occupation of the ground floor of house No. 2080, Mohalla Rodgran, Bazar Lal Kuan, Delhi since 1948, that initially he 249 was atenant under the Custodian of Evanuee Property New Delhi but later on, when the property was transferred to the Municipal Corporattion of Delhi, became a tenant under the Corporation on a monthly rent of Rs. 6.00 , that on 21.8.1665 the defendants illegally and forcibly entered and took possession of the house along with articles worth about Rs. 7000.00 , that defendants No. I to 4 illegally inducted Abdul Razzaq and Mustaq Ali. (There is no defendant by the name of Mushtaq Ali in the heading of the plaint so it seems that the correct name is Mushuq Ali). The defendants contested the suit. It was submitred that the tenancy of the plaintiff was terminated on 23.10.1965 and therefore, he ceased to be tenant under the Corporation. The Corporation in its written statement stated that plaintiff was a tenant in a portion of the said house at Rs. 6.00 per month, that his tenancy wrs terminated on 23.10.1965 and therefore, he ceased to be a tenant. It was also alleged that Mohd. Nagi was the legal tenant in the premises. The management of this property was transfered by .the Municipal Corporation of Delhi to the Delhi Development Authority and therefore, the Delhi Development Authority was substituted in place of the Municipal Corporation of Delhi vide order dated 27.2.1975.

(3.) The plaintiff claimed possession against all the defendants as he alleged that he was dispossessed by all of them. On 5.7.1977 the defendants filed an application under Order 22 Rule 4 and section 151 of the Code of Civil Procedure alleging that Mashuq Ali defendant No. 5 had died more than five months before, that plaintiff was aware of his death, that he did not take steps to bring his legal representatives on record, that the cause of action against all the defendants was joint and indivisible and therefore, the suit abated against all the defendants. The plaintiff contested this application and also filed another application under Order I Rule 10 of the Code of Civil Procedure for striking out the name of Mashuq Ali defendant No. 5 alleging that his name was improperly joined in the plaint as a defendant) that he had not filed any written statement, that the right to sue survives againt the other defendants. It was therefore, prayed that the name of defendant No. 5 Mashuq Ali be struck out. The trial Court by the impugned order dated 7.3.1981 accepted the application of the defendants holding that the suit had abated against all defendants and rejected the application of the plaintiff. Hence this revision.