SURAJ MANDAR Vs. DEV MISHRA

JUDGEMENT

(1.) This second appeal is at the instance of the plaintiffs. Plaintiffs' suit was decreed. Defendants preferred an appeal in the court of appeal below. The appeal was allowed on the sole ground that the decree passed by the trial court is a nullity. It was so held because the heirs of defendant 5 were not substituted in suit upon the death of the said defendant in the year 1972. It was also held that the suit became incompetent by virtue of said inaction. The impugned judgment dismissing the appeal has to be read along with the order passed by the lower appellate court dated 17-3-1979.

(2.) Learned counsel for the appellants contends that the judgment of the lower appellate court is wholly erroneous in law. The question framed at the time of admission of this appeal is, whether it was at all incumbent upon the plaintiff to file a substitution petition separately in the suit when such a step was taken in connected restoration case where the heirs were substituted. The second question framed was whether the deceased defendant was at all a necessary party and whether on account of non-substitution of the heirs, the suit became incompetent. In my opinion, if the first question is answered in favour of the appellants, there will be no need of going into the second question.

(3.) Admittedly defendant 5 never appeared in the suit nor filed any written statement. The suit seems to have been dismissed for default. The plaintiff had filed restoration petition of the said suit and it was restored in miscellaneous Case No. 15/73. In the said miscellaneous case a substitution petition was filed impleading the two sons of deceased defendant 5. This substitution petition was allowed on 10-5-73 reckoning limitation from the date of knowledge of the death i.e. 9-4-73. It appears that thereafter the restoration petition was allowed and the suit was restored. But curiously the substitution was not carried out in the body of the plaint of the suit. However, it appears that the name of defendant 5 was expunged from the plaint. Naturally defendant 5 did not figure in the said decree. In this background I am called upon to decide whether 'the substitution effected in the restoration petition was sufficient enough or it was also required to take steps in the suit as well to make the suit a competent one.