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Judgment
This revision petition is directed against the order dated 27th May, 2003 passed by Additional District Judge, Srinagar, in case titled as Pran
Nath Mahaldar & Anr. v. Manzoor Ahmad Bakshi and another, which shall be hereinafter referred to as impugned order.
Brief facts of the case:
A civil suit for perpetual injunction titled Pran Nath Mahaldar & Anr. v. Manzoor Ahmad Bakshi and another, came to be filed before this Court
on 11th April, 1981 on the grounds taken in the plaint which can be aptly and precisely enumerated as under:
That plaintiff No.2 was tenant of defendants 1 and 2 i.e. son and father in respect of a flat in the first floor and go down in the ground floor.
Plaintiff firm claimed protection in terms of the mandate of Jammu & Kashmir Houses and Shops Rent Control Act 1966 and had prayed for
issuance of decree restraining the defendants perpetually from causing any kind of interference into the peaceful possession and enjoyment of the
suit property in any manner.
It appears that during the pendency of the suit, defendant No.2 Abdul Rashid Bakshi, died and an application came to be filed by the plaintiff for
bringing on record the legal representatives of defendant No.2. It came to be dismissed by Additional District Judge, Srinagar, vide order dated
30th March, 2002. However, learned Additional District Judge opined and observed that the effect of dismissal of the said application, would be
decided after hearing the parties. After hearing the arguments the trial courtAdditional District Judge, Srinagar, passed the impugned order.
The crucial point is whether the suit had abated in view of death of defendant No.2 read with rejection of the application of plaintiffs for bringing
on record the legal representatives of defendant No.2?
Learned trial court after hearing the arguments passed a detailed judgment and came to the conclusion that suit has not abated. It is profitable to
reproduce last two paras of the impugned order herein, which reads as under:
What emerges for the above is that every case has to be decided on its own peculiar features and law has to be applied accordingly. In the case in
hand admittedly features and facts are altogether different as already made mention of herein above, that the suit in hand is a simpliciter suit for
injunction wherein two defendants were claimed to be causing interference with regard to two different properties i.e; property mark 'A' as
mentioned in the plaint which is a flat belonging to defendant No. 1 and godown mark 'B' belongs defendant No.2, so on both counts abatement
cannot follow because two defendants have two sperabable interests with regard to the suit property. Furthermore simpliciter interference is
claimed in the hand of two defendants when one is dead, interference on his part automatically comes to an end. His legal representatives can be
arrayed as party or any other person can be arrayed as a party if at all they cause any sort of interference. At present no interference on their part
is claimed. It hardly matters that other legal representatives are not brought on record they were not required to be brought on record. I am
fortified in my view by the judgments referred herein above as also by the judgment of our Hon'ble High Court which is unreported dated
25.9.2002, passed in Review No.5/2002 in CSR No.7/2000 in the case titled Gh. Ahmed Akhoon & Ors v. Wall Akhoon & Ors.
The cumulative effect of the aforesaid discussion leads me to irresistible conclusion that abatement has not occurred due to the death of defendant
No.2 nor same can be ordered. Hence contention of the Ld. Counsel for defendant No.1 is repelled.
Heard. Perused. Considered.
I am of the considered view that suit has not abated for the following reasons:
It is profitable to notice Rule 1 of Order XXII of Civil Procedure Code, for short Code, herein:
No abatement by party's death, if right to sue survives. The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue
survives.
This provision of law clearly mandates that death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives.
Admittedly the suit is for perpetual injunction and the grievance projected in the plaint is that both the defendants be restrained from causing any
interference. Thus by no stretch of imagination, it can be said that suit has abated because right to sue survives and decree could be passed against
defendant. The suit of the plaintiffs is not for declaration or for any other relief decree but it is only for grant of decree of perpetual injunction.
Rule 4 to Order XXII of Code can be pressed into service when Rule 1 Order XXII of Code has no application. In the instant case Rule 1
Order XXII of Code is applicable. Thus recourse to Rule 4 Order XXII of Code is unthinkable.
Privy Council in case titled Mahomedally Tyebally v. Safiabai reported in AIR 1940 Privy Council 215 held as under:
On the first point their Lordships are of opinion that it is impossible to hold that the suit for administration of Ebrahimji's estate came to an end by
reason of abatement as against Sakinaboo. Sakinaboo and her daughter Rukhiaboo are persons having the same interest as the plaintiff and though
the plaintiff by reason of laches may be supposed in certain circumstances to lose her rights as against them, it is paradoxical to suppose that the
plaintiff's laches have deprived them of rights. There is nothing in O.22 to take away their interest in the estate of Ebrahimji and they could (so far
as that order is concerned) have brought an administration suit of their own, notwithstanding any abatement of the plaintiff's suit. The presence of
someone to represent Sakinaboo's interest was very proper and highly desirable in the interest of every other party, but it is putting it too high to
say that the suit could not possibly go on without her.
Apex Court in a case titled Shahazada Bi v. Halimabi reported in 2004 AIR SCW 4389 held that when interests of codefendants are separate
as in the case of coowners the suit will not abate and at the most suit could abate only against a deceased defendant not against all. It is profitable
to reproduce relevant portion of para9 of the said judgment herein, which reads as under:
9 Order 22, R.4, C.P.C.lays down that where within the time limited by law, no application is made to implead the legal representatives of a
deceaseddefendant, the suit shall abate as against a deceaseddefendant. This rules does not provide that by the omission to implead the legal
representative of a defendant, the suit will abate as a whole. What was the interest of the deceaseddefendant in the case, whether he represented
the entire interest or only a specific part is a fact that would depend on the circumstances of each case. If the interests of the codefendants are
separate, as in case of coowners, the suit will abate only as regards the particular interest of the deceased party.....
Applying the test, laid down in the judgments referred hereinabove, to the instant case, admittedly the suit is for perpetual injunction and cause
of action survives against defendant No.1.
It is also worthwhile to take note of an important factor that defendant No.1 is son of defendant No.2 (deceased) and thereby is virtually on
record as one of the representative of defendant No.2 also.
Looking and examining this point from the angle that plaintiffs had pleaded that both defendants were causing interference and prayed for
decree against both the defendants. Thus on the death of death of defendant No.2 his interference has come to an end automatically but still suit
survives because cause of action against defendant No.1 survives.
If the legal representatives of deceased defendant No.2 would causes interference at this stage or in future, are plaintiffs precluded or debarred
from filing the suit? The reply is in negative. If any party causes interference the aggrieved party can file suit at that particular point of time.
Order XXII of CPC mandates and provides how a suit will abate. The provisions of ""Code"" contain procedural mandate. It is now beaten law
of the land that procedures are hand made and its purpose is to achieve the object and not to defeat the same and it is the duty of the court that
provisions contained in the procedure are interpreted liberally.
Apex Court in case titled Sardar Amarjit Singh Kalra v. Pramod Gupta, reported in (2003) 3 SCC 272 held as under:
Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an
adjudication on merits of substantial rights of citizen under personal, property and other laws. Procedure has always been viewed as the handmaid
of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice. A careful reading of the provisions contained in Order 22
CPC as well as the subsequent amendments thereto would lend credit and support to the view that they were devised to ensure their continuation
and culmination in an effective adjudication and not to retard the further progress of the proceedings and thereby nonsuit the others similarly placed
as long as their distinct and independent rights to property or any claim remain intact and not lost forever due to the death of one or the other in the
proceedings.
In view of the above discussion, I am of the considered view that trial court has not, committed any illegality and, fallen in error while passing
the impugned order.
Accordingly, this revision petition is dismissed, impugned order is upheld.
Registry is directed to send down the record alongwith a copy of this order.