BABA HARI MOHITE Vs. DINKAR RAMCHANDRA SAPKAL

JUDGEMENT

(1.) By this writ petition under article 227 of the Constitution of India, the petitioners have taken exception to the order dated 10. 8. 1994, by which an application at exhibit-86 filed by respondent no. l under order 22, Rule 3 (1) and (2) of the Code of Civil procedure (for short, "the CPC") , seeking dismissal of Regular Civil Suit No. 278 of 1981 as abated in its entirety, has been allowed. The petitioners are the original plaintiff nos. l to 4 and 6, whereas the respondents are the original defendants, hereinafter referred to as "the petitioners" and "the respondents" respectively. Insofar as the original plaintiff no. 5 Banubai hariba Mohite is concerned, she would be referred to by her name.

(2.) The petitioners and Banubai mohite instituted Regular Civil Suit no. 278 of 1981 for declaration, injunction and also for mandatory injunction seeking directions to the respondents to remove the obstruction in enjoyment of their right of way and use of the door, as shown in the map annexed to the plaint. They have claimed an easement of necessity against the respondents. The suit was filed on 19. 8. 1981 claiming the aforestated reliefs against all the respondents. During pendency of the suit, Banubai Mohite died on 30. 12. 1991. It appears that no immediate steps were taken by the petitioners for bringing her heirs and legal representatives on record. However, an application seeking to bring her legal representatives on record was filed on 6. 1. 1993 and it was rejected on the very same day. The order rejecting that application was challenged in writ petition no. 1207 of 1993 and the writ petition was dismissed vide order dated 23. 6. 1993. Thereafter, respondent no. 1 filed the application at Exhibit-86 under Order 22, Rule 3 (1) (2) of CPC for dismissal of the suit in its entirety as abated, which came to be allowed by the impugned order.

(3.) It is against this backdrop the question that falls for my consideration is "whether the order, dismissing the suit in it; entirety as abated, in the facts am circumstances of the present case, is sustainabl' in law and whether the petitioners are entitle to proceed with the suit against the respondents defendants. In other words, looking to the reliefs claimed in the suit, whether after the death of Babubai Mohite - plaintiff no. 5, the right of the petitioners - plaintiffs no. 1 to and 6, survives even if her legal representative are not brought on record and in their absent whether the suit can proceed against the respondents-defendants.