H S BHATNAGAR Vs. COLLECTOR GHAZIABAD

JUDGEMENT

(1.) SUDHIR Narain, J. This is an ap plication for deletion of the name of Sri Hamendra Swaroop Bhatnagar, the plain tiff and substitute the name of M. S. Bhat nagar in his place and there is another application with the similar prayer but there is a further prayer to substitute the name of Satyendra Kumar Bhatnagar also in addition to M. S. Bhatnagar.

(2.) BRIEFLY stated, the facts are, that Jyoti Swarup Bhatnagar had no issue. He had one brother Har Swarup Bhatnagar. Har Swarup Bhatnagar expired in the year 1923 leaving behind him five sons namely Gyan Swarup Bhatnagar, Sachida Nand Bhatnagar, Brahm Swarup Bhatnagar, Brijendra Swarup Bhatnagar and Hamendra Swarup Bhatnagar. Hamendra Swarup Bhatnagar filed testamentary peti tion No. 13 of 1984 for grant of probate/let ters of administration in the matter of goods and property of deceased Jyoti Swarup Bhatnagar on the allegation that he had executed a Will on 22-4-1920 which provided that till the life-time of Har Swarup he will administer the property of Sri Jyoti Swarup Bhatnagar in accordance with the testament dated 22-4-1920 and after his death, the property shall be ad ministered by the sons of Sri Har Swarup Bhatnagar. Har Swarup Bhatnagar expired in the year 1923 and out of his five sons except the petitioner Hamendra Swarup Bhatnagar, all expired and thus he claimed that he was only surviving ex ecutor of the Will of deceased Jyoti Swarup Bhatnagar. On his petition, the notices were issued and on an object ion being filed by the contesting opposite party, it was treated as contentious and registered as testamentary Suit No. 6 of 1994.

(3.) WHERE any suit is filed in the Civil Court, on the death of the plaintiff the suit shall not abate if the right to sue survives. On the death of the plaintiff the Court can (sic) representative of the deceased (sic) Order 22, Rule 3 of the Code of Civil Procedure. Similarly, if the defendant dies, his legal representatives can be substituted under Rule 4 of Order XX, C. P. C The Code of Civil Procedure was amended in 1976 and Order IV-A was added which provides that if, in any suit, it shall appear to the Court that any party who has died during the pendency of the suit has no legal representative, the Court may, on the ap plication of any party to the suit, proceed in absence of the person representing the estate of the deceased person, or may by order appoint the administrator general, or an officer of the Court or such other person as it thinks fit to represent the estate of the deceased person for the pur pose of the suit.