RAJENDRA KUMAR Vs. KASHIBAI

JUDGEMENT

(1.) By this petition filed under Article 227 of the Constitution of India, the petitioners have called in question the legality, validity and propriety of the orders dated 22.3.2011 and 9.5.2011, whereby the court below has allowed the applications filed under Order 22 Rule 3 CPC, regarding death of plaintiff No. 2 Jhabbulal and plaintiff No. 3 Hariram respectively. Shri D.D. Bansal, learned counsel for the petitioners submits that by filing reply to aforesaid applications, the present petitioners took a categorical stand that date of death of Jhabbulal and Hariram is disputed. Therefore, the court below should have enquired about the matter. He placed heavy reliance on a document filed at page 39 with the petition which is a death certificate of Hariram. On the basis of this document, Shri Bansal submits that it is apparent that Hariram expired on 1.2.2009 and the application was filed on 28.8.2009, which was barred by time. The court below has erred in allowing the said application. He submits that it is a fraud, which vitiates the judicial proceedings and, therefore, it should not have been allowed. He further submits that plaintiffs have filed the suit for declaration of title and permanent injunction and have sought relief jointly in favour of all plaintiffs and, therefore, in the event of death of any of the plaintiffs, the entire suit will abate or atleast abate against the deceased plaintiffs. He also relied on , (Papanna and another vs. State of Karnataka and others, 1996 1 SCC 291), , (Mukhtiar Singh and another vs. Kishan Kaur (Smt.) and others, 1996 7 SCC 299) and ,(A.V. Papayya Sastry and others vs. Govt. of A.P. and others, 2007 4 SCC 221).

(2.) The next submission of Shri Bansal is that after the death of plaintiffs, the suit is automatically abated and in absence of any application for setting aside the abatement and condonation of delay, the applications filed under Order 22 Rule 3 CPC should not have been allowed. He further submits that in case this Court is not inclined to interfere, the petitioners be given liberty to raise these issues in appeal.

(3.) Per Contra, Shri Vinod Bharadwaj, learned senior counsel assisted by Shri Raja Sharma, Advocate for the respondents submits that the petitioners have placed reliance on a document, i.e. death certificate, which was never placed before the court below. New material cannot be relied upon in Article 227 proceedings. He further submits that in absence of placing these material on record, it cannot be said that the court below has erred in any manner. Shri Bharadwaj further submits that as per (Ms. Suman Khanna v. M/s. Bharat Hotel & Restaurants,2002 AIHC 1436) it is clear that if the deceased plaintiff was survived by his dependants and one of them is already on record as plaintiff, there is no question of abatement of suit. He also relied on the definition of 'legal representative' mentioned in Section 2(11) of CPC and further relied on the judgments reported in (Man Singh (Raja) & another vs. Ramvishal & others,1999 JabLJ 453), , (Ram Niranjan Das and another vs. Loknath Mandal and others, 1970 AIR(Pat) 1) and , (Amir Lal Thakur and others vs. Ram Krishna Singh and others, 1970 AIR(Pat) 384) to submit that the suit by no stretch of imagination can abate because except plaintiff No. 1 all are brothers and sisters.