GAON SABHA IBRAHIMPUR DEH Vs. MAHMOOD AND ORS.

JUDGEMENT

(1.) HEARD Sri Lok Pal Singh, Advocate appearing for the Petitioner as well as Sri Sanjeev Singh, Advocate appearing for the Respondents, at length.

(2.) THIS is a writ petition of the Plaintiff/Appellant (Petitioner before this Court) against the order of the learned Additional District Judge, Roorkee, Haridwar dated 30.11.2006, whereby the appeal of the Appellant/Petitioner has been dismissed as abated.

(3.) IN short, what has been laid down by the Supreme Court in the aforesaid two cases is that the matter would abate against all the Defendants, in case there is a joint claim or a joint decree against all the Defendants. However, whether this is a case in the present case has not been pleaded. Therefore, in view of this Court, the two rulings, on which reliance has been placed by the court below, may only be applicable to the facts of the case cited by Defendant No. 4 and not to the present case. Moreover, Order XXII Rule 1 Code of Civil Procedure clearly states that merely by death of a Defendant, the suit shall not abate, if the right to sue survives. This aspect has not been considered by the court below. Therefore, the order dated 30.11.2006 passed by the learned Additional District Judge, Roorkee, Haridwar is set aside. The matter is remanded back to the court below for fresh adjudication in accordance with the provision laid down in Order XXII Rule 1 Code of Civil Procedure and in accordance with law.