GAUTAM RAMANLAL DIWAN Vs. MADHUKAR RAGHUNATH KALEWAR

JUDGEMENT

(1.) In 1966 the respondents brought two suits against the defendants -petitioners for possession of two separate premises on the allegation that they are owners and the latter were mere trespassers. All the 6 plaintiffs are real brothers. It appears that the first two plaintiffs Madhukar and Madan died a number of years ago. Admittedly the surviving plaintiffs did not take out any proceedings in the lower Court for bringing legal representatives of the deceased plaintiffs on record. Thereupon the defendants took out two Notices of Motion for an order that both suits should be disposed of as having abated. The lower Court dismissed these Motions. The defendants preferred two separate appeals to this Court from the lower Court's order. As the impugned order is not appealable, at the request of the appellants' learned advocate, they were converted into civil revision applications. This order disposes of both these revisions.

(2.) THE learned Judge has held that on the death of the first two plaintiffs, plaintiff No. 3 Mahendra became the Karta of the joint family and as such he could continue the suits. He also held that even one co -owner could in law maintain such suits for possession and damages for wrongful use and occupation, and as such, the omission on the part of the surviving plaintiffs to bring the legal representatives of the deceased on record was inconsequential. In this view, he dismissed both Notices of Motion.

(3.) SHRI Doctor also invited my attention to Rules 2 and 3 of Order 22 C.P.C. and urged that inasmuch as the 6 brothers had initially opted for joining together in bringing the suit, it was not subsequently open to the surviving plaintiffs to fall back upon the proposition that even initially the suit would have been competent in absence of the deceased plaintiff. I do not find any substance in this particular contention. Sub -rule (2) of the aforesaid Rule 3 inter alia provides that where one plaintiff died out of many and an application is not made for substitution of his legal representatives, the suit abates so far as the deceased plaintiff is concerned. The clear implication is that it does not necessarily abate as a whole in every case. In this context, we must appreciate the distinction between what is known as initial abatement qua a deceased plaintiff alone under Rule 3(2) ibid and the abatement of the suit as a whole. There may be cases where notwithstanding the abatement of the suit against a particular deceased plaintiff, the suit does not abate as a whole and may be continued at the instance of the surviving plaintiff/plaintiffs. The present suits belong to this category. The only effect of the omission to bring legal representatives of deceased plaintiffs 1 and 2, will be to debar them from bringing a fresh suit on the same cause of action. Since even a single co -owner can successfully maintain a suit for possession and mesne profits against a rank trespasser, the two suits under consideration do not abate as a whole, in spite of the death of two brothers.