DASMAT SOREN Vs. SAMPAT CHAUHAN

JUDGEMENT

(1.) ON 3 -5 -2000, this Court issued notice to Respondents No, 1 to 12 to show -cause as to why this appeal be not disposed of at the stage of hearing under Order XLI, Rule 11 of the Code of Civil Procedure, and upon service of notice the matter has come up and has been heard for final disposal with the consent of the parties.

(2.) THIS appeal is directed against the order dated 24 -12 -1998 passed in Title Suit No. 358/95 by the Sub -Ordinate Judge I, Purnea whereby the plaintiffs ' petitioners for substitution and setting aside of abatement have been rejected and the Court has held that the suit stands abated as whole and dismissed the suit as abated. After filing of the suit, a petition was filed on behalf of defendants No. 1 and 2 on 2 -9 -1988 informing the Court that defendants Nos. 3,4 and 5 died long time back. A rejoinder was filed on behalf of the plaintiffs to the said petition on 10 -9 -1998 and thereafter on 29 -10 -1998, a petition for substitution was filed and later on 10 -11 -1998 the aforementioned petition for setting aside of abatement was filed. The Court on consideration of the fact that in the substitution petition, no date of birth has been disclosed regarding the death of defendants No. 3. to 5.and that only the names of the heirs of the deceased defendants are mentioned in the petition held that it was difficult to ascertain whether the substitution petition was filed within the statutory period of 90 days and consequently also held that the plaintiffs ' petition for setting aside of abatement is also of no avail. According to the learned Sub -Ordinate Judge, it was the duty of the plaintiffs to ascertain the date of death of deceased defendants No.

(3.) MR . Ambastha, learned Counsel appearing for Respondent Nos. 1 and 2, has not disputed that both the parties based their claim on the basis of separate settlement made in their favour by the State of Bihar. Under such circumstances, he has not been able to defend the impugned order dismissing the entire suit as having abated in view of law settled. However, on the first point raised on behalf of the appellants, he contended that there is no infirmity in the impugned order rejecting the petition filed on behalf of the plaintiffs for substitution and/or for setting aside the abatement as it was the duty of the plaintiffs to furnish the date of death of the deceased defendants. In the absence of date of death, the learned Sub -Ordinate Judge has rightly found it difficult to ascertain whether the substitution petition has been filed within the statutory period of 90 days.