Gulam Nabi Kumar and Another vs Mohd. Akbar Teli

J.P. Singh, J.—Petitioners-Plaintiffs' application seeking impleadment of legal heirs of Ali Mohammad Teli, defendant No. 2 in their suit

claiming ownership rights over land measuring 3 kanals 17 marlas falling under survey Mo.258 Khewat No. 22 Min situated at Village Batapora,

Ganderbal, was dismissed by Munsiff Ganderbal vide order of March 07, 2006, on the ground that, suit against Ali Mohammad Teli, having

abated in view of his death before the filing of the suit and the abatement having not been set-aside within the period of limitation prescribed

therefor, impleadment of the legal heirs of Ali Mohammad Teli, as party defendants was impermissible.

Appearing for the revisionists, their Learned Counsel submits that the trial court has erred in rejecting petitioner's application seeking

impleadment of Ali Mohammad Teli's legal representatives as party defendants by applying the provisions of Order 22 CPC which had absolutely

no application to the petitioner's application which warranted consideration under the provisions of Order 1 Rule 10 of the Code of Civil

Procedure.

Per contra, referring to Ali Mohd. Khan Vs. Vijay Tulsi, , Mr. H. Furrahi submitted that in view of the law laid down by this Court, Learned

Munsiffs order was perfectly justified and the petitioner's were disentitled to seek impleadment of the legal heirs of Ali Mohammad Teli against

whom their suit stood abated.

I have considered the submission of Learned Counsel for the parties and perused the order passed by the trial court.

The trial court has rejected petitioners' application proceeding on the premise that petitioners' suit against Ali Mohammad Teli, had abated because

of his death before filing of the suit, and without getting the abatement set-aside within the prescribed period of limitation, the petitioners' cannot

avoid the affect of abatement, taking refuge under Order 1 Rule 10 of the Code of Civil Procedure.

Abatement of a lis is governed by the provisions of Order 22 of the Code of Civil Procedure.

Abatement kills the right to sue, resultantly terminating the proceedings without adjudication on merits. In such view of the matter, strict

construction of the provisions of Order 22 is warranted.

Abatement can thus be said to have taken place only if it was so covered by the provisions of Order 22 of the Code of Civil Procedure.

The provisions of Order 22 of the Code, a plain reading whereof so demonstrates, contemplate abatement only in those cases where a

plaintiff(s) or defendant(s) dies during the pendency of the proceedings. The provisions do not contemplate abatement in a case where a party to

the lis was already dead before the institution of the proceedings.

The Learned Munsiff was thus not right in rejecting petitioners' application on the ground that suit against. Ali Mohammad Teli had abated

because of his death before the suit.

The next question which falls for consideration is as to whether or not petitioners' suit was nullity and in this view of the matter impleadment of

legal heirs of Ali Mohammad Teli unwarranted?

The defendants barring defendant No. 2 being alive, plaintiffs' suit, cannot by any stretch of reasoning be said to be a suit against a dead person,

hence nullity, rendering impleadment of the legal heirs of the deceased as party defendants impermissible.

The Judgment cited by Mr. Furrahi is not applicable to the facts of the present case because in that case Jhe sole defendant had died before the

filing of the suit.

The defect in plaintiffs' suit in impleading Ali Mohammad Teli rather than his legal heirs as party-defendants could well be cured by the plaintiffs

to seek adjudication of their rights in the Immovable property, the subject matter of the suit, in view of plaintiffs' surviving joint cause of action

against those who stood already impleaded as party defendants, and the legal heirs of Ali Mohammad Teli.

Order 1 Rule 10(2) of the Code takes care of such a situation and permits striking out of a person who is improperly joined as a plaintiff or

defendant and substitution therefore by the person who was required to be impleaded as plaintiff or defendant in the suit as the case may be.

Petitioners' prayer in their application seeking impleadment of the legal heirs of Ali Mohammad Teli as party defendants in the suit in place of

Ali Mohammad Teli who had been improperly joined as defendant is thus required to be allowed as I do not find any legal impediment in refusing

the impleadment.

For all what has been said above, this revision petition therefore succeeds and is accordingly allowed setting aside Munsiff Ganderbal's order

of March 07, 2006 and allowing petitioners'-plaintiffs' application for impleadment of legal heirs of Ali Mohammad Teli as party-defendants.

Parties through their Learned Counsel are directed to appear before the trial court on 1st of June, 2009.