SADATI AL HUSSAINI JALALI TRUST Vs. QASIM GANAIE

JUDGEMENT

(1.) The instant petition has been filed by Sadat Ai-Hussaini Al-Jalali, Trust, Srinagar (Kashmir) (for short the Trust) through its authorized representatives namely Syed Muzaffar Jalali & Syed Mehmood Jalali against orders dtd. 16/6/2015 and 17/9/2018 passed by the court of City Munsiff, Srinagar and First Additional District Judge, Srinagar (hereinafter for short the Trial and the Appellate court respectively).

(2.) Facts giving rise to the filing of the instant petition reveal that a suit for permanent prohibitory injunction came to be filed by the Trust through a Trustee against the defendants respondents herein pertaining to a graveyard situated at Zoonimar before the Trial Court, wherein the defendants/respondents herein appeared and filed written statement to the suit, whereafter the Trial Court framed various issues, and before evidence could be led by the plaintiff, Trust, the Trustee who had filed the suit on behalf of the Trust died on 16/7/2011 during the pendency of the suit and on 30/3/2012, the defendants/respondents herein filed an application under Order 22 Rule 3 (2) of Code of Civil Procedure stating therein that the suit stands abated on account of death of the said trustee which application, however, came to be contested by the Trust through another of its trustees on the ground that the suit having been filed in the representative capacity same would not abate owing to the death of the original trustee. The trial court after considering the said application, in terms of impugned order dtd. 16/6/2015, allowed the same and held that the suit stands abated as right to sue did not survive more so, as no application seeking substitution of the deceased trustee have had been filed in the suit within prescribed period. Aggrieved of the impugned order dtd. 16/6/2015, the Trust filed an appeal on 28/1/2016 before the Appellate Court through two trustees which appeal came to be dismissed by the Appellate Court in terms of impugned order dtd. 17/9/2018, upholding the order of the trial court dtd. 16/6/2015.

(3.) The petitioner Trust has in the instant petition questioned both the impugned orders on multiple grounds including that the impugned orders passed by the courts below suffer from illegality and material irregularity having caused serious miscarriage of justice and that the suit could not have been said to have abated as the suit was filed in representative capacity with the leave of the Trial Court.