KANHAIYA PRASAD SRIVASTAVA Vs. SANTOSH KUMARI

JUDGEMENT

(1.) The present Civil Revision arises out of an order and judgment dated 27-5-1989 passed by the District Judge, Ballia allowing the substitution application No. 4-Ka. The facts leading to the present revision is that Original Suit No. 85 of 1983 was filed by the plaintiff. Raj Kishore Prasad through next best friend Smt. Santosh Kumari for cancellation of sale-deed executed in favour of defendant Kanhaiya Prasad Srivastava. Before the trial Court an application was filed by the plaintiff to contest the suit as an indigent person. The said application was allowed by the trial Court against which the defendant Kanhaiya Prasad Srivastava filed a Civil Revision No. 204 of 1983. During the pendency of this revision the plaintiff died and the defendant moved a substitution application to implead the heirs of the plaintiff. The said substitution application was allowed by order dated 8-4-1985 and the heirs of the plaintiff Raj Kishore Prasad were impleaded in the Civil Revision No. 204 of 1985.

(2.) It may also be stated here that the plaintiff, while he was alive had also moved an application before the trial Court for appointment of a receiver. This application was rejected by an order of the trial Court dated 3-3-1984 against which the plaintiff filed Misc. Appeal No. 54 of 1984. In this Misc. Appeal, Smt. Santosh Kumari filed an application for substituting her name in place of the plaintiff. This substitution application was rejected by order dated 16-1-1987 on the ground that the date of the death of the plaintiff was wrongly mentioned. Subsequently, Smt. Santosh Kumari filed an application under Order 22, Rule 9, C.P.C. for setting aside the abetment, in the Misc. Appeal No. 54 of 1984, which was again rejected by an order dated 27-11-1987. It has also been stated that Smt. Santosh Kumari moved an application on 12-12-1984 for substituting the heirs of the plaintiff in Original Suit No. 85 of 1983, which was dismissed as not pressed on 23-9-1988. However, prior to the dismissal of the aforesaid application, another application No. 4A dated 24-11 -1987 was moved praying therein that the name of the heirs of the plaintiff be substituted in Original Suit in view of the fact that the heirs have already been substituted in Civil Revision No. 204 of 1983. This application No. 4A was allowed by the impugned order dated 27-5-1989 against which the present Civil Revision has been filed before this Court.

(3.) Heard Sri M. M. Sahai, learned counsel for the defendant-revisionist and Sri. L. P. Singh, learned counsel for the opposite parties. The counsel for the revisionist submitted that the order passed in Civil Revision No. 204 of 1983 substituting the heirs of the plaintiff cannot benefit the heirs of the plaintiff in Original Suit inasmuch as the revision is not a continuation of a suit. Further no application was made within the prescribed period before the trial Court for substituting the heirs of the plaintiff and the suit abates by operation of law. It was further submitted that the application on behalf of the heirs in Misc. Appeal No. 54 of 1984 for impleadment had already been rejected and, therefore, the said order in Misc. Appeal will operate as res judicatain in so far as any order being made on the substitution application in the Original Suit.