HABIBUR RAHMAN KHAN Vs. POORAN

JUDGEMENT

(1.) THIS special appeal has come up before this Full Bench under the following circumstances. The appellants filed a suit against three parsons, namely, Data Ram, Chhuttan and Babu Lal for possession of the properties mentioned in the plaint and for mesne profits on the allegation that they had taken wrongful possession of the properties and were trespassers. During the trial of the suit, Data Ram remained absent and the suit proceeded ex parte against him. It was contested by the other defendants. Evidence of parties was recorded and argument of parties were heard on 29th March, 1950, and 19th of April, 1950 was fixed for delivery of judgment. On 19th of April, 1960 the trial Judge felt that fresh arguments were necessary and, consequently, be fixed 20th July, 1950 for further arguments. Admittedly, during this interval Data Ram defendant died on the 31st of May, 1950. No steps were taken regarding his legal representatives being brought on the record until subsequently in the month of September when an application was made by the living defendants Chhuttan and Babu Lal informing the court that Data Ram had died on 31st May, 1950 and requesting the court to dismiss the suit on the ground that it had abated as a whole. To this application a reply was made on behalf of the present appellants that the suit had not abated, because of the applicability of Order XXII Rule 6 of the Code of Civil Procedure and that the provisions of Order XXII Rule 4 of the Code of Civil Procedure did not apply. On 14th October, 1950 the appellants made an application for substitution of the legal representatives of the deceased defendant Data Ram. At that time, however, no prayer was made for setting aside the abatement. Consequently, a subsequent application was made on 24th February, 1951 praying for the amendment of the application for substitution by putting the following words: "The plaintiffs were not aware of Data Ram's death before 28th Septembers 1950 when an application was made by the other defendants so the plaintiffs be given benefit of Section 5 of the Limitation Act and the abatement if any, be set aside and his representatives be made a party." On that very day, this application was allowed by making an order for amendment of the plaint on payment of Rs. 10 as costs. It is an admitted fact that the costs were not paid and the various applications came up for orders before the trial judge on 22nd November, 1951. On that day, the Judge held that the suit abated as against Data Ram and as the nature of relief claimed by the plaintiffs was joint and one against all defendants, the suit abated as a whole. The parties were directed to bear their own costs.

(2.) AGAINST his order a first appeal was filed which came up for hearing before a learned Single Judge, who dismissed the appeal being of the opinion that the view taken by the trial Judge was justified by the materials on the record and the circumstances of the case and was in accordance with law. Thereupon, the appellants filed a special appeal, which came up for hearing before a Division Bench of this Court. The Division Bench by its order dated 12th August, 1964 referred the case to a larger Bench, because it was pointed put before that Bench that, on the question of law involved there were conflicting opinions recorded by two earlier Division Benches, The question, which was canvassed before the Division Bench was whether the view taken on the facts of this case the suit could not proceed even against the surviving defendants was correct or incorrect. The Division Bench was of the view that the conflict in the opinion of the earlier Benches should be resolved by a larger Bench and, consequently, the case has come up before this Full Bench.

(3.) THEN comes the question whether we can now at this stage interfere with that order in so far as it affects the claim of the appellants against the living defendants, Chhuttan and Babu Lal. The order of the trial Court stating that the suit abated as a whole was on the face of it not correct. There could be no abatement of any suit against the defendants, who were still alive. What the court should have decided was whether the right to sue survived against the surviving defendants. If the court came to the view that the right to sue did not survive, the suit could be dismissed without further trial. On the other hand, if the court came to the view that the right to sue survived and an effective decree could be made against the surviving defendants only, the court should have proceeded to try the suit on merits against the surviving defendants and should have passed a decree in accordance with the findings finally arrived at.