SHYAM RAY Vs. HARAMANI DEI

JUDGEMENT

(1.) This is a revision against an order refusing leave to the plaintiff to withdraw the suit with liberty to institute a fresh suit.

(2.) The petitioner brought Original Suit No. 252 of 1976 for declaration of title, confirmation of possession; in the alternative for recovery of possession if he was found not to be in possession and for damages for unlawful removal of trees etc. He also alleged that the defendants had constructed a room over plot No. 1704, a part of the disputed, property.

(3.) Defendant No. 2 was set ex parte on 18-3-1977. On 30-8-1978 the plaintiff filed an application under Order 22, Rule 4 (4) of the Civil P. C. (for short, "the Code") for exempting him from the necessity of substituting the legal representatives of defendant No. 2 about whose death he learnt 8 days before. An objection was filed by defendant No 3 to the effect that the Said defendant had died on 15-3-1978 arid had left behind legal representatives on whom his estate had devolved and since the right to sue had survived against the said legal representatives, the prayer for exemption should be refused. By order dated 23-2-1979, the trial Judge rejected the petition and dismissed the suit holding that the suit had abated against defendant No. 2 and in its entirety. The plaintiff carried Miscellaneous Appeal No. 12 of 1979 against the said order. During the pendency of the appeal, the plaintiff filed an application under Order 23, Rule 1 (3) for leave to withdraw the suit with liberty to institute a fresh suit. The appellate Judge rejected the petition.