TH DASS Vs. INDRU

JUDGEMENT

(1.) THIS revision arises out of a suit for injunction. During the pendency of the suit, several defendants, namely, Bhagian, Sandru, Anant Ram, Desu, Shiv Ram and Manga Ram died but their heirs were not substituted. The lower court held that the suit had abated as against the deceased defendants but it was still maintainable against the remaining defendants. Aggrieved by the order the surviving defendants have come up in revision to this court.

(2.) FOR the petitioners it is contended that the lower court has committed an error of law in holding on the facts of this case that the suit will proceed against the surviving defendants. Before dealing with this objection it will be necessary to refer to the provisions of 0 22 R. 4 CPC Order 22, Rule. 4, reads : "1 Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives the Court, on an application made in that behalf shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit: 2 Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.

(3.) WHERE within the time limited by law application is made under sub rule 1, the suit shall abate as against the deceased defendant." 3 In accordance with this rule, where there are several defendants and some of them die during the pendency of the suit but their heirs are not substituted, then, two things follow. Firstly that the suit will abate as against the deceased defendants Secondly, that the proceedings against the surviving defendants will continue or collapse depending upon whether the right to sue survives or not to the plaintiff against such defendants. That will always depend upon the facts and circumstances and the nature of the relief claimed in the suit. The proceedings will continue if the court can deal with the matter in controversy so far as regards the rights and interests of the plaintiff and the surviving defendants. They will collapse and the suit will be dismissed if it is not possible for the court to deal with such matters.