Bombay High Court
Kosarichand Motichand Shah vs Fakirbhai Kariabhai Koli And Others on 8 September, 1994
Equivalent citations: AIR1995BOM102, 1995(3)BOMCR415, (1995)97BOMLR791, 1995(1)MHLJ290, AIR 1995 BOMBAY 102, 1995 (1) BOM CJ 478, 1995 BOMCJ 1 478, (1995) 1 HINDULR 463, (1995) 1 MAH LJ 390, (1996) 1 CIVILCOURTC 14, (1996) 3 LANDLR 454, (1996) 1 LJR 610, (1995) 3 CURCC 6, (1995) 3 BOM CR 415
JUDGMENT
1. The short point for my determination in this appeal is whether in a suit for injunction simpliciter the same abates when during the pendency of the suit one of the defendants expires and his legal representatives are not brought on record in the meantime.
2. The undisputed fact is that the appellant is the original plaintiff who has filed the suit against 26 defendants for permanent injunction simpliciter in the month of July, 1991. The suit was instituted in the Court of, the Civil Judge, Senior Division, Panaji under No. 89/91/A. The cause of action for filing of the suit is that the defendants/now respondents had interfered in the appellant's property situated at Daman which belongs to him.
3. It is the case of the appellant that he came to know about the death of one of the defendants being defendant No. 6 occurred somewhere in the year 1984 only later on in the year 1988. Therefore as matter of abundant caution he moved an application before the trial Court to bring the legal representatives of the deceased defendant on record and for setting aside the abatement of the suit, if any. This application was made by the appellant on 5-10-1988 and in the same application he prayed also for condonation of delay in filing the application although no separate application nor any affidavit was filed along with it to condone the delay.
4. In reply to this application the remaining defendants brought to the notice of the trial Court that besides the defendant No. 6 one more defendant, being defendant No. 4, had also expired during the pendency of the suit many years ago and that no application was moved by the appellant to bring his legal representatives on record. The defen-
dants therefore opposed to the appellant's application and prayed that the suit be declared as abated against all the defendants.
5. The learned trial Judge by the impugned order dated 25-10-1990 rejected the appellant's application to bring the legal representatives of defendant No. 6 on record and dismissed the suit in toto by declaring it abated on the ground that the legal representatives of the deceased defendants Nos. 4 and 6 had not been brought on record within the prescribed time.
6. Shri Usgaonkar, learned counsel appearing for the appellant, has made it clear at the very outset that he is not going to touch on the merits of the appellant's application moved before the trial Court to bring on record the legal representatives of the deceased defendant No. 6. According to him it was sufficient for the appellant to challenge the order of the learned trial Judge on the ground that in law there could be no abatement in toto of the suit filed by him in the special facts and circumstances of this case. The learned counsel-urged that there was a case of a suit for injunction simpliciter and no declaration was sought for by the appellant. It was contended that the appellant in view of the interference or encroachment of the defendants in his property could have perfectly filed separate suits against each of the 26 defendants for injunction. The learned counsel submitted that in case separate suits had been filed by the appellant and in any of them the defendant had expired without the appellant having brought his legal representatives on record within time then in that case only the concerned suit would have abated while the remaining suits could have proceeded. Therefore, according to the learned counsel, there was no reasonable justification for the learned trial Judge to declare as abated the whole suit against the defendants only because the appellant has failed to bring the legal representatives of one of the to defendants who happened to expire during the pendency of the suit.
7. It was contended by the learned counsel that a question could therefore have arisen as to why the appellant had filed only one suit against all the defendants in this case. The learned counsel invited my attention to the provisions of Order 1, Rule 3 of Civil Procedure Code which permits the joining of of the defendants in circumstances referred to in the said provision. The learned counsel further argued that in a suit for injunction the plaintiff had to prove only his possession and also the fact that such possession was traceable to any title. It was also urged that a suit could be declared as abated only when it was a case of necessary parties when the plaintiff could not have brought the suit for necessary relief against the surviving defendants alone and/or also when if the decree was passed against the surviving defendants in case the suit had succeeded such decree would be in effective, that is to say, incapable of successful operation without the participation of the deceased defendant or his legal representatives. This being the position obviously the suit could not have been declared as abated against all the defendants in toto in the instant case.
8. Reliance was placed in this regard on the case of Murti Hanuman Brajman. Hanuman, Mardir. Hissar v. Punjab Wakf Board, . This was also a suit for permanent injunction restraining the defendants from taking forcible possession and raising unauthorised construction in the suit property. One of the defendants died during the pendency of the suit and the plaintiff failed to apply for bringing the legal representatives of the deceased defendant on record within the time of limitation. In the aforesaid case the learned single Judge held that since the suit was for the grant of the permanent injunction only, it did not abate as a whole because of the death of one of the defendants. In a suit for the grant of permanent injunction, the right to sue survives even if one of the defendants has died and his legal representatives are not brought on record.
9. There is indeed a lot of substance in the submissions of the learned counsel. Admit-tedely in the instant case the suit filed by the appellant was a suit for permanent injunction simipliciter without any prayer for declara-
lion against the respondents. The suit was filed against several defendants and it can be lie since cause of action against all of them could be said being the same and therefore the right to relief for the appellant was arising out of the same act or transaction or series of acts or transactions which was alleged against them. Further such suit would also be justified against all the appellants jointly since common questions of facts and also of law would arise if separate suits had been instituted by the appellants against them. This being the case it is obvious that when one of the defendants had died during the pendency of the suit there was no need for the appellant to bring his legal representatives on record because the right to sue would survive in I respect of the remaining defendants. Strictly speaking it could be said that on the expiry of one of the defendants the cause of action against him had ceased and therefore the question of brining his legal representatives on record would not arise. The relief sought for by the appellant against the defendants was only to restrain the defendants from interfering in his property. Thus, the cause of action against the deceased defendant or defendants as well as against the remaining defendants was their actual interference in the suit property. Therefore there could be no cause of action against the legal representatives of such defendants who had expired and in such circumstances there was no necessity for the appellant to bring on record the legal representatives of the deceased defendants.
10. Order 22, Rule 1 of the Civil Procedure Code expressly prescribes that there is no abatement by party's death and that the death of a plaintiff or a defendant shall not cause the suit to abate if the right to sue survives. Rule 2 says that where 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.
In its turn Rule 4 of Order 22 lays down that 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. Sub-rule (3) of Rule 4 provides that where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant.
11. It thus follows that in a case when the right to sue survives against the remaining defendants the question of the plaintifff bringing the legal representatives of the deceased defendants does not arise. In the instant case the application of the appellant to bring the legal representatives of the deceased defendant No. 4 was redundant because admittedly the suit having been filed for injunction simpliciter the cause of action against the said defendant had ceased on his death. On the other hand, as rightly contended by Shri Usgaonkar, if the plaintiff instead of instituting a single suit against all the defendants had filed separate suits against them obviously the suits against the surviving defendants could not have been defeated or dismissed on the ground that on the death of one defendant in the suit the plaintiff had failed to bring his legal representatives on record. The consequence of that failure would be that the suit against the concerned defendant would be abated and no impact this abatement could have caused on the fate of the remaining suits. This being the position it is clear that the appellant could not have been placed in a worse position in case he had chosen to file a single suit against all the defendants as provided by the law in terms of Order 22, Rule 1, C.P.C.
12. In the result and without much elaboration I am of the view that this appeal is bound to succeed. Accordingly the order of the learned trial Judge dated 25th October, 1991 is hereby quashed and set aside and the Special Civil Suit No. 89/91/ A is restored to the file of Civil Judge, Senior Division Panaji with a direction that the same should proceed as per the law.
13. During the pendency of this appeal it appears that respondents Nos. 9, 10, 11, 15, and 23 have died and consequently the learned counsel for the appellant have moved Miscellaneous Civil Applications Numbers 268/91 and 331/91, respectively, praying that the names of the said defendants be deleted from the cause title.
In the view I have taken on the merit of this appeal it is in the fitness of things that such applications should also be granted. Thus, Miscellaneous Civil Application Nos. 268 of 1991 and 331 of 1991 are hereby allowed and the names of the deceased respondents Nos. 9, 10,11, 15 and 23 in this appeal are directed to be deleted. The suit should therefore proceed in the trial Court against the surviving defendants.
In the circumstances of the case there will be, however, no order as to costs.
14. Order accordingly.