Jharkhand High Court
Sumitra Devi vs Rubi Singh on 10 October, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
C.M.P. No. 316 of 2020
Sumitra Devi .... .. ... Petitioner(s)
Versus
1.Rubi Singh
2.Smt. Savitri Devi .. ... ...Opp. Party(s)
...........
CORAM :HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
.........
For the Petitioner(s) : Mr. Rohitashya Roy, Advocate
Mr. Vibhor Mayank, Advocate
For the O. P. No.1 : Mr. Nitesh Kumar, Advocate
......
05/ 10.10.2022. The instant CMP has been filed for issuance of an appropriate writ/
writs, order/ orders, direction/ directions or writ in the nature of Certiorari for
quashing the impugned order dated 17.02.2020 passed by learned District Judge-
IX, Giridih, in Civil Appeal No.8 of 2017, whereby and whereunder the learned
court below has been pleased to reject the petition dated 17.05.2019 filed under
Order XXII Rule 3(2) of the CPC, 1908 for abatement of Civil Appeal No.08 of
2017.
2. The brief fact of the case is that Partition Suit NO.16 of 2010 was filed by
Mundrika Singh (since dead) with respect to Plot Nos.109, 126 and other plots of
Mouza Barmasiya, Thana No.230, Thana- Giridih which was recorded as raiyati
right in the name of Raman Kahar.
3. The petitioner Sumitra Devi (defendant no.1) in partition suit no.16/2010 which
was filed by Mundrika Singh in the capacity of sole plaintiff. She is the wife of
Daroga singh, the brother of Mundrika Singh. The suit was dismissed on
28.11.2016 and against the said judgment and decree Mundrika Singh preferred
civil appeal 8/2017. During the pendency of the appeal, subsequent purchaser
namely Rubi Singh was added in the memo of appeal as appellant no.2 .
4. The petition for abatement was preferred by the petitioner /Defendant no.1 on
the ground that after the death of sole plaintiff Mundrika Singh, his heirs or legal
representatives have not been substituted in the appeal.
5. On the other hand it was contended before the Court below that Mundrika
Singh (appellant no.1) died issueless and therefore the question of substitution did
not arise. Appellant no.2 Rubi Singh had purchased one Katha of land by
registered sale deed which formed part of the suit property.
6. The learned appellate Court dismissed the abatement petition on the ground that
appellant no.2 is contesting the appeal after the death of appellant no.1 and the
appeal shall not abate as a right to sue still survives.
7. Heard the learned counsel on behalf of the petitioner and perused the impugned
order. Indisputably O.P. No.1 Rubi Singh is the pendente lite purchaser who was I
impleaded in the appeal as appellant no.2. It has been held in Dhurandhar Prasad
Singh v. Jai Prakash University, (2001) 6 SCC 534 :
7. Under Rule 10 Order 22 of the Code, when there has been a devolution of interest during
the pendency of a suit, the suit may, by leave of the court, be continued by or against
persons upon whom such interest has devolved and this entitles the person who has
acquired an interest in the subject-matter of the litigation by an assignment or creation or
devolution of interest pendente lite or suitor or any other person interested, to apply to the
court for leave to continue the suit.
8. Rubi Singh being the pendente lite purchaser was impleaded in the appellate stage
and had right to sue survived in her favour. Under the circumstance the appeal did not abate
on the death of Mundrika Singh (appellant no.1) as the appellant no. 2 had right to pursue
the appeal. I do not find any illegality in the impugned order.
The instant petition is devoid of any merit and is accordingly dismissed.
(Gautam Kumar Choudhary, J.)
Sandeep/
