DEVI PRASAD Vs. RAM NIWAS

JUDGEMENT

(1.) Heard. This revision under Section 115, Civil Procedure "Code is directed against the order dt. 11-12-2000 passed by A.D.J., Beohari, in M.A. 15/00 affirming the order dt. 1-7-2000 passed by Civil Judge Class-II, Beohari in C.S. No. 159-A/99 treating the suit filed by the petitioners as fully abated.

(2.) The facts in brief are, plaintiff/petitioners filed C.S. No. 159-A/99 (Annexure II) for declaration-confirmation of possession- partition of the suit lands against the present respondents as well as one Jimni daughter of Triveni Prasad, could not have been served for a sufficient time. On 7-3-2000 notice to Jimni returned with the report that person named has not been found. Thereafter on enquiry petitioners came to know that Jimni in fact has died, therefore an application under Order 22, Rules 3, 4, Civil Procedure Code was filed on 23-3-2000. It was contended by the respondents that Jimni died sometime in the year 1994, therefore, the suit has been abated. Dismissing the application under Order 22, Rules 3, 4, Civil Procedure Code vide order dt: 1-7-2000, the Civil Judge treated the suit as abated on the demise of Jimni daughter of Triveni Prasad. The petitioners preferred M.A. 15/00 in the Court of A.D.J. Beohari. Affirming the order aforesaid passed by Civil Judge the appeal was dismissed vide impugned order dt. 11-12-2000. Learned counsel for the petitioner assails the order as it suffers from material irregularity in dismissing the suit in its entirety as against other defendant/respondents also.

(3.) The suit being for reliefs of declaration, confirmation of possession, partition of suit property on the death of one of the defendant Jimni could not have been treated as abated. Right to sue the remaining defendants survived under Order 22, Rule 2, Civil Procedure Code. Even filing of application under Order 22, Rules 3, 4, Civil Procedure Code on learning the fact of the demise of Jimni has saved the suit. The application ought not to have been dismissed.