SUBASH CHANDER Vs. SHAKUNTALA DEVI

JUDGEMENT

(1.) THIS is the plaintiffs' second appeal against the judgment and decree of the District Judge, Badarwah dated 11-8- 1973, dismissing the appeal of the appellants against the order of abatement of the suit dated 21-6-1972 passed by the Sub-Judge, Badarwah.

(2.) BRIEFLY speaking the facts of the case are that in a suit for declaration brought by the plaintiffs against Phulla Ram and others, defendant No. 1 Phulla Ram died during the progress of the trial of the case. It is alleged that he died in the month of Chet 2023 Bikrami. An application under Order 22, Rule 4 of the Code of Civil Procedure was made by the plaintiffs in which they averred that they were the sole legal heirs of Phulla Ram deceased as the said defendant had died issueless. This application was made in June 1967. The application was resisted by the defendants on the ground that Phulla Ram was survived by one Mst. Thakri, his widow, with whom he had contracted marriage. The plaintiffs denied this fact. The Court, thereupon, embarked upon an enquiry as envisaged under Rule 5 of Order 22 of the C.P.C. After a protracted enquiry the trial Court found that Mst. Thakri was the widow of the deceased and was, therefore, a legal heir to be substituted in place of Phulla Ram. But as the plaintiffs had failed to bring her on record in time, therefore, in the view of the trial court, the suit had abated which was consequently dismissed. On appeal the learned District Judge, Badarwah upheld the judgment of the trial Court and dismissed the appeal of the appellants.

(3.) ON the question of fact, it is not seriously disputed by the learned counsel for the appellants that Mst. Thakri was the legally wedded wife of Phulla Ram. He has, however, canvassed the proposition, that the suit could not have been dismissed in consequence of abatement inasmuch as the plaintiffs had made a distinct application under Order 22, Rule 4 of the Civil Procedure Code within time. Even assuming that the plaintiffs had failed to give the names of the legal representatives of the deceased, that would not have justified the court to order the dismissal of the suit on this ground.