BRIJ LAL Vs. VIJAY KUMAR

JUDGEMENT

(1.) VIJAY Kumar respondent No. 1 filed a suit in forma pauperis for possession of three sets of properties Comprising agricultural land and two double storey shops alleging that they belonged to the joint Hindu family of 'which he and his father (Maman Chand) were members and the latter had made the alienations thereof without consideration and legal necessity and the same were not binding on him. On a preliminary Objection raised, the trial court held vide order dated Nov. 10, 1972, that the Suit was bad for multifariousness and all the causes of action joined in the single suit could not be conveniently tried. Vijay Kumar was directed to amend the plaint and to continue the suit only in respect of any one of the three sets of properties. Vijay Kumar preferred a revision against the order of the trial court which was admitted and the Proceedings in the trial court were stayed. The revision was allowed on Feb. 24,1977. The order of the trial court dated Oct. 10, 1972, was set aside and a direction was issued to proceed with the suit.

(2.) RAM Chander and Dalip Singh were impleaded as defendants Nos. 3 and 14 respectively in the suit. Ram Chander died on Nov. 20, 1974, and Dalip Singh on July 30, 1976. Their legal representatives were not impleaded in revisional proceedings. After the revision had been accepted and the file returned to the trial court with a direction to proceed with the suit, Vijay Kumar moved an application on July 26, 1977, for impleading their legal representatives in the suit. The proposed legal representatives of the deceased as also the remaining defendants opposed the application alleging that the suit had abated and it may be dismissed as such. The trial court vide Order dated Oct. 31, 1977, has held that the suit has not abated and for this reliance has been placed on Jowala Singh Prem Singh v. Malkan Nasirpur, AIR 1958 Pun 171. It has also been held that in view of the fact that more than one cause of action are being tried in the suit, the question of abatement of the suit in entirety does not arise. The legal representatives of the deceased defendants were accordingly ordered to be impleaded as defendants, it is against this order that the present revision is directed.

(3.) THE contention of the learned counsel for the petitioners is that the ratio of Jowala Singh Prem Singh's case (supra), has been wrongly made applicable to the instant case. In Jowala Singh Prem Singh's case (supra), the suit of the plaintiffs was dismissed on the ground that the Civil Court had no jurisdiction and their appeal to the District Judge also failed. The plaintiffs preferred a revision which was accepted by the High Court and the case was remanded to the trial court for disposal. One of the defendants died in the meantime. This fact was not brought to the notice of the High Court when the revision was argued. On remand it was contended before the trial court on behalf of the defendants that there had been an abatement of the revision petition. The trial court did not agree. It was held that there, was no question of abatement in case of a revision. The son of the deceased defendant was allowed to be added as a defendant. The defendants preferred a revision against the order of the trial court. It was held that ordinarily the provisions of Order 22 govern the case of abatement during the pendency of the suit. This principle has been extended expressly by R. 11 of Order 22 to the case of appeals but there is no mention of its applicability to the revisions. This is a case in which the maxim inclusio unius est exclusio alterius should apply and by restricting the application of the rule of abatement expressly to suits and appeals, the intention of the legislature was to exclude from its purview cases arising from proceedings in revision.