CHHATARGIRI Vs. SMT. KEOLAPATI

JUDGEMENT

(1.) In a suit under Sec. 229-B/176 of the U.P.Z.A. & L.R. Act, one Jai Ram Giri was arrayed as defendant no. 12, though he was dead at the time of the suit. It was afterwards found that Jai Ram Giri had died, but on the back of the summons the date of his death had not been given. Written statements of some of the defendants were filed, and no objection was taken to the effect that the suit had been filed against a dead person, viz : Jai Ram Giri. It appears that the plaintiff himself was ignorant of the fact that Jai Ram Giri had died and that no service on him had been made. It is also a fault of the court that it failed to notice the fact that one of the defendants was dead and that no substitution application had been filed for making his heirs parties in the case. On 20.8.1979, Shri Rudradhar Pandey gave an application on behalf of the defendants that Jai Ram Giri had died before the institution of the suit and hence the suit was liable to be abated. At this stage, it should be kept in mind that on 26.7.1979, Shri Rudradhar Pandey, Advocate, filed written statement on behalf of some of the defendants, but in that written statement no such plea was taken.

(2.) On 21.5.1980, the learned trial court passed an order that no suit could be instituted against a dead person and hence he dismissed the suit as not maintainable. Before the order of dismissal was passed by the learned trial Court, the plaintiff Chhatar Giri, had filed an application that due to, mistakes the name of Jai Ram Giri was typed in the plaint; that his heirs, Moti Giri, Sita Ram and Vishwanath were already arrayed as defendants nos. 10, 13 and 11 respectively ; and hence he prayed for the deletion of the name of Jai Ram Giri from the array of the parties.

(3.) The learned Additional Commissioner, Shri Giridhar Gopal, was of the view that the name of Jai Ram Giri was arrived as a defendant inadvertently by reason of the fact that his name still found place in the Khatauni, and that as his heirs were already on record, the question of substitution did not arise and the matter remained one including simple mistake by arraying a dead person as a party to the suit. The learned Additional Commissioner has, therefore, recommended that the order of the trial court be set aside and the name of Jai Ram Giri, defendant nos. 12, be deleted from the array of the parties.