Madhya Pradesh High Court
Jitendra Sharma vs Shyam Lal on 13 March, 2025
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
MISC. PETITION No. 3296 of 2022
JITENDRA SHARMA & ORS.
Versus
SHYAM LAL AND OTHERS
Appearance:
Shri P.C. Chandil - Advocate for the petitioners.
Shri Mahesh Goyal - Advocate for the respondents.
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Reserved on 11.03.2025
Delivered on 13.03.2025
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ORDER
This petition under Article 227 of the Constitution has been
filed by the petitioners against the order dated 19.07.2022 passed by
II Civil Judge, Junior Division, Morena in RCS A 18/2012 whereby
learned trial Court while allowing the application filed by the
respondents/plaintiffs under Section 151 CPC had directed the
plaintiffs to delete the name of plaintiff No.6 from the array of
parties.
2. In brief, the facts of the case are that the suit for declaration
and permanent injunction was filed by the plaintiffs/respondents
No.1 to 5 and Late Sonu S/o Sataypal against the petitioners and
respondents No.6 and 7 with respect of Pator and open land but
during the pendency of the said suit, one of the plaintiffs i.e. plaintiff
No.6 had expired in the year 2021. Hence under these circumstances,
the plaintiffs/ respondents No.1 to 5 had submitted an application on
12.07.2022 before the Trial Court for deleting his name as he was
unmarried and his mother could not be contacted. The
petitioners/defendants had submitted their reply contending that in
the application no date of death of plaintiff No.6 has been mentioned
and though Plaintiff no.6 sonu died in the year 2021, no steps were
taken to bring his mother smt. Tripta Devi and one sister who are
alive on record and substitute their names as the legal heirs of
deceased sonu within prescribed limitation and as the relief of
declaration sought in the plaint is joint and in-separable therefore the
suit filed by the plaintiff would abet in entirety therefore prayed for
dismissal of the suit as abetted. Learned Trial Court, after hearing
the parties, passed the order on 19-07-2022 whereby allowed the
application with direction to delete the name of deceased sonu from
the array of plaintiffs. Being aggrieved by the order dated
19.07.2022, the present petition has been filed.
3. Learned counsel for the petitioner submits that the order
dated 19.07.2022 passed by the Trial Court is per se illegal and the
same is not sustainable in the eye of law because the fact with regard
to death of plaintiff No.6 was well within the knowledge of the
petitioner and it was mentioned in the application that though his
mother and one sister were alive, but no steps were taken by the
plaintiffs for substituting the legal heirs of deceased Sonu within the
statutory period of limitation, in such circumstances, the suit filed by
the plaintiffs had been automatically abetted and therefore, the same
deserves to be dismissed as abetted.
4. It was further submitted that from perusal of the plaint, it
would reveal that, the plaintiffs/respondent no.1 to 5 and deceased
sonu sought relief to declare them Bhumiswami of the suit property.
The relief of declaration sought in the plaint is joint and in-
separable. In such circumstance, the suit filed by the
plaintiffs/respondent would abet in entirety as no steps had been
taken by the plaintiffs/respondents in prescribed limitation for taking
legal heirs of deceased-plaintiff sonu on record, but instead of
dismissing the suit as abeted, the court below illegally ordered to
delete the name of deceased plaintiff sonu from the array of plaintiff
vide impugned order, therefore, the same deserves to be set-aside. To
bolster his submissions, learned counsel for the petitioners has relied
upon the judgment of Single Bench of this Court in the case of Ram
Prakash Indrasen Kohli Vs. Krishna Das Agarwal and Another
reported in (1999) 1 MPLJ 447.
5. Per contra, learned counsel for the respondents/plaintiffs
submits that after the death of the one of the plaintiffs, the entire
suit cannot be treated as abated as other plaintiffs were there on
record and right to sue still survived with them. Since the said
plaintiff No.6 died issueless and he was not having any legal
representatives, hence under these circumstances, an application was
submitted by the plaintiffs for deleting his name from the array of
cause title of the suit, thus, no illegality has been committed by
learned trial Court in passing the impugned order. Hence,
interference of this Court is not warranted.
6. Heard and considered the submissions made at Bar and
perused the material available on record.
7. This fact is not in dispute that a suit for declaration and
permanent injunction was filed by the plaintiffs and in the meantime,
plaintiff No.6 -Sonu had expired and after some time of his death, an
application was submitted by the plaintiffs No.1 to 5 for deleting his
name from the array of cause title of the suit. The learned trial Judge
vide impugned order dated 19.07.2022 has allowed the said
application with direction to delete the name of deceased sonu from
the array of plaintiffs.
8. The main question for consideration is whether on the non-
substitution of legal representatives of some of the plaintiffs during
pendency of the suit, the entire suit would stand abated or it will be
so only in respect of the particular deceased plaintiff. This question
has been answered in favour of the plaintiff by the Hon'ble Apex
Court in the case of Delhi Development Authority Vs. Diwan
Chand Anand and Ors. reported in 2022 SCC Online SC 855 and
it has been held in para 31.1 to 31.3 as under:-
"(31.1) The death of a plaintiff or defendant shall not cause the suit to abate if
the right to sue survives;
(31.2) If there are more plaintiffs or defendants than one, and any of them dies,
and where the right to sue survives to the surviving plaintiff or plaintiffs alone,
or against the surviving defendant or defendants alone, the Court shall cause an
entry to that effect to be made on the record, and the suit shall proceed at the
instance of the surviving plaintiff or plaintiffs, or against the surviving defendant
or defendants (Order 22 Rule 2);
(31.3) 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. Where
within the time limited by law no application is made under sub-rule 1 of Order
22 Rule 4, the suit shall abate as against the deceased defendant."
8. The same view has been followed by the Hon'ble Apex
Court in the case of Siravarapu Appa Rao and Ors. Vs. Dokala
Appa Rao, reported in 2022 Live Law (SC) 845.
9. In view of the aforesaid judgment, in the considered
opinion of this Court, where there are more than one plaintiffs, the
entire suit cannot be held to be abated on the death of the one of the
plaintiffs.
10. So far as the judgment relied upon by the petitioner
rendered in the case of Ram Prakash Indrasen Kohli (supra) is
concerned, since the same attends different facts and circumstances,
therefore, is of no help to the petitioner.
11. Accordingly, no illegality can be said to have been
committed by learned trial Court in passing the impugned order.
Consequently, present petition stands dismissed.
(MILIND RAMESH PHADKE)
JUDGE
ojha
