Debashis Mandal vs Sushanta Mandal

Sanjay Kumar Dwivedi, J

Heard Mr. Sanjay Kumar Pandey, learned counsel appearing through VC along with Mrs. Prachi Pradipti and Mr. Rajan Kumar Tiwary appearing for the petitioners.

Notices upon opposite party nos. 1 to 76 have been effected, however, till date they have not appeared and in view of that, with a view to provide one more opportunity to the opposite parties, the matter was adjourned on 09.06.2025 and in spite of that, they have chosen not to appear before this Court. As such, this petition is being heard in absence of the opposite parties.

This petition has been filed under Article 227 of the Constitution of India for setting-aside the order dated 01.03.2023 passed by learned Additional Civil Judge (Jr. Division-X), Jamshedpur, whereby, the learned Court has been pleased to dismiss the Original Title Suit No. 27 of 2019 filed under Order IX, Rule-5 of the C.P.C.

Learned counsel appearing for the petitioners submit that the petitioners/plaintiffs have instituted Original Title Suit No. 27 of 2019 inter-alia for a decree for declaration that the judgment dated 26.08.1992 and decree drawn on 02.09.1992 by the Sub-Judge III, Jamshedpur in Title Suit No. 20-23/1987-90 was not binding upon them. The further prayer was made for setting-aside the judgment dated 26.08.1992 and decree drawn on 02. 09.1992 by the Sub-Judge III, Jamshedpur in Title Suit No. 20-23/1987-90 on the ground that fraudulently the said decree was obtained. The said suit was admitted on 03.06.2019 and after issuance of summons, postal receipts were filed on 28.06.2019 and the matter was fixed for appearance of opposite parties and for service report. She submits that on 09.03.2022, the petitioners filed information before the trial Court that proforma defendant No. 46 had died on 31.01.2020 and as such the learned Court directed the petitioners to take proper step upon the proforma defendant No.46 and 53. She further submits that the report was put up on account of COVID-19 on 30.03.2020, 23.06.2020, 16.07.2020, 10.09.2020, 21.10.2020, 18.02.2021 and the next date was fixed on 25.05.2021 for service report as well as for proper step against proforma defendant no.46 and 53. According to her, since the Courts were working in hybrid mode around the relevant time, due to COVID-19, the plaintiffs could not comply the direction for proper step on proforma defendant no.46 for next 6 dates but filed the required petition on 09.03.2022 even without any date fixed which was directed to be put up on the next date fixed by the learned Court. In the meantime, the case was transferred by the order of the Principal District Judge to another Court. The petitioners/plaintiffs have filed petition on 29.11.2022 under Order XXII (2) read with Section 151 C.P.C., however, the defendants took no step. On the next date i.e. 06.01.2023, the lawyers abstained from work and the learned Court was also on leave. She submits however, just one day thereafter, the learned Court has been pleased to dismiss the whole suit of the plaintiffs in terms of order dated 01.03.2023 by wrongly invoking provision under Order IX, Rule 5 of the C.P.C. She submits that if the compliance was not made for defendant nos. 46 and 53, the suit can abate against two defendants, however, the learned Court has been pleased to dismiss the entire suit, which is against the mandate. On these grounds, she submits that the impugned order may kindly be set-aside.

It is an admitted position that the suit was admitted in which the direction has been issued to issue notice and further direction was made to the plaintiffs to take proper steps for substitution and service of notice upon defendants nos. 46 and 53, however, it was not complied within the time and the reasons have been assigned that hearing in the Courts were made in hybrid mode due to COVID-19, however, a petition was filed later on, i.e. on 29. 11.2022 disclosing the facts and requesting the Court to take it on the record.

It is well-known that the effect of a suit abating against one out of two or more defendants is exactly the same as if he had not been impleaded as a defendant at all. Rule 4 of Order XXII of C.P.C. deals with the death of one defendant out of two or more when the right to sue does not survive against the surviving defendants; if no application is made within the prescribed time for bringing on the record the legal representatives of the deceased defendant “the suit shall abate as against the deceased defendant” and cannot abate against the other defendants. A suit may fail against the other defendants on other grounds, but it cannot abate as against them. If under a statute suit cannot be filed without joining the deceased defendant, it will fail not on the ground that it abates, but on the ground that it is not maintainable under the law unless he or his successors-in-interest is impleaded.

Abatement of an appeal is governed by the provisions regarding abatement of suits in Order XXII of C. P. C. Rule 4 of Order XXII deals with the death of one defendant out of two or more. It has been made clear in Shibban v. Allah Mehar, reported in AIR 1934 All 716, Mt. Ram Dei v. Jurawan Missi, reported in AIR 1930 All 762, Mohan Singh v. Moti Singh, reported in 1960 All LJ 932 and Shivamrathi Kunwar v. Dharam Deo Singh, reported in AIR 1951 All 428, that a suit abates only against the deceased defendant and cannot abate against surviving defendants.

The effect of a suit abating against one out of two or more defendants is exactly the same as if he had not been impleaded as a defendant at all. If a suit is instituted against ‘A’ and ‘B’ and ‘B’ dies and the suit abates as against him, the suit will proceed against ‘A’ as if it had been instituted against him alone. In other words, the suit against ‘A’ will be governed by the provisions of Order I. Rule 9 of Order I is to the effect that no suit shall be defeated by reason of non-joinder of parties and that the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. Thus, the Court will be bound to deal with the suit as against ‘A’ so far as regards the rights and interests of the plaintiff and ‘A’ are concerned. If there is a statutory provision which lays down that a suit will not be maintainable against ‘A’ without ‘B’ being impleaded, the suit will fail as against ‘A’ by virtue of the statutory provision.

In view of the above facts, reasons and analysis, the Court finds that the entire suit has been wrongly dismissed by the learned Court relying on Order IX Rule 5 of the C.P.C., whereas, abatement should be only of defendant nos. 46 and 53 and, as such, the order dated 01.03.2023 passed by learned Additional Civil Judge (Jr. Division-X), Jamshedpur in Original Title Suit No. 27 of 2019 is, hereby, set-aside.

Original Title Suit No.27 of 2019 is restored to the file of the learned Court so far as other defendants are concerned, barring defendant nos. 46 and 53 as suit against them has already been abated.

Accordingly, this petition is allowed in above terms and disposed of.