MOHAN SINGH Vs. BHONDA RAM

JUDGEMENT

(1.) THE plaintiff-petitioner had filed a suit for permanent injunction and also filed an application for mandatory injunction which was pending trial in the Court of Civil Judge (Jr. Div.) Bharatpur bearing No. 326/91 Mohan Singh vs. Bhonda Ram & Ors. While the suit was pending, one of the defendant-Bhonda Ram died for whom admittedly no application for substitution was filed by the plaintiff nor the defendant- respondent brought it to the notice of the court below regarding the death of the defendant. When the matter came up before the Court on 30. 10. 96 it was contended on behalf of the defendant- respondent that an order of abatement of the suit should be recorded since the defendant-Bhonda Ram has died but no application for substitution has been filed. THE Advocate for the plaintiff-respondent although accepted the position that no application for substitution was filed for Bhonda Ram, yet an order of abatement could not have been recorded in the matter as there were other defendants who were on record and were contesting the suit and they are the legal heirs of the deceased- Bhonda Ram. Inspite of this, the trial court dismissed the suit as having abated which is under challenge in this revision petition.

(2.) HAVING heard learned counsel for the parties and on perusal of the impugned order it is noticed that although Bhonda Ram-the- principal-defendant had did for whom admittedly no application for substitution was filed, yet when it was brought to the notice of the trial court that some heirs of Bhondaram were already on record, the trial court clearly committed an error recording an order of abatement for the entire suit. There can be no quarrel about the legal position that the suit abates in respect of any plaintiff or defendant of whom application for substitution is not filed within the prescribed period of 90 days, but in a situation where there are more than one plaintiff or defendant who were not merely performa defendant-appellant, the suit cannot be permitted to abate in its entirely specially if it is prosecuted by the defendants who were already on record. This legal position is well settled and need no authority. However, the counsel for the petitioner to reinforce this position has placed reliance on delivered in the matter of Mahaveer Prasad vs. Jagram and Ors. (1), wherein also the same position has been held.