Smt. Dhanwanti Karamchandani & Ors. vs Smt Neeta Tiwari

With the consent of the parties, arguments heard for the purpose of final disposal of the civil revision.

The instant civil revision petition has been filed under Section 115 of the Code of Civil Procedure, 1908 (hereinafter referred as "CPC") assailing order dated 23.08.2025 passed by Twenty First District Judge, Indore in Civil Suit No. 401-A/2023, whereby the trial Court has Suo Motu passed an order for withdrawal of the plaint filed by the petitioners / plaintiffs with liberty to file afresh.

The short facts of the case are that the petitioners filed a civil suit seeking decree of possession, mandatory injunction, perpetual injunction and recovery of means profit. The suit was filed against the respondent and her two sons. During the pendency of the suit, it was revealed that one of the defendant namely Ankit Tiwari had already died before filing the suit. He died on 05.11.2022, whereas the suit was filed on 07.11.2022. There is no other legal representative of Ankit Tiwari except the respondent / mother. During the pendency of the suit, the defendant No. 2 Abhishek Tiwari also died on 06.05.2023, therefore, an application was filed on behalf of the petitioners under Order XXII Rule 4 read with Order I Rule 10(2) and Order VI Rule 17 read with Section 151 of CPC seeking deletion of the names of defendant No. 2 - Abhishek Tiwari and defendant No.3 - Ankit Tiwari from the array of the parties. The application was opposed by the respondent and the respondent also filed an application under Order VII Rule 11 read with Section 151 of CPC for rejection of plaint.

The trial Court passed the impugned order dated 23.08.2025, whereby the trial Court treated the application filed by the petitioners as application for withdrawal of the suit with permission to file afresh.

Counsel appearing on behalf of the petitioners submits that no application was moved on behalf of the petitioners to withdraw the suit with a liberty to file afresh and simply the petitioners have moved the application for deletion of the names of the defendant Nos. 2 & 3 from the array of the parties on the ground that the defendant No. 2 died during the pendency of the suit and defendant No. 3 died before filing the suit and there is no other legal representative of defendant Nos. 2 & 3 except the defendant No.1. He submits that the trial Court has committed error in treating the application as application for withdrawal of the suit. He prays for setting aside the impugned order.

Counsel appearing on behalf of the respondent submits that the suit was filed against a dead person and, therefore, the suit was suffering from the technical defect and the trial Court considered the technical defect, permitted the petitioners to withdraw the suit with a liberty to file afresh. The counsel, however, fairly accepts that there is no other legal representative of defendant Nos. 2 & 3 except the defendant No. 1. He prays for dismissal of the revision petition.

After considering the arguments advanced by the counsel for the parties and from perusal of the impugned order, it appears that the suit was filed against the respondent and her two sons, out of which, defendant No. 2 died during the pendency of the suit and defendant No. 3 died just two days before filing the suit. The factum of the death of the defendant No. 3 was not in the knowledge of the plaintiffs at the time of filing the suit. Later on, the plaintiffs filed an application for deletion of the names of defendant Nos. 2 & 3 on the ground that there is no other legal representative of defendant Nos. 2 & 3 except the defendant No. 1. The trial Court considered the application as an application for withdrawal of the suit with a liberty to file afresh and decided the anpplication accordingly. As per the provisions of Order XXIII Rule 2 of CPC, if any fresh suit instituted on permission granted by the Court, the plaintiffs shall be bound by the law of limitation in the same manner as if the first suit had not been instituted.

The original suit was filed on 07.11.2022 and the order was passed on 23.08.2025 and if, the plaintiffs are directed to file the fresh suit, the plaintiffs will be in a difficulty to satisfy the Court in respect of the limitation. If the suit was filed against a dead person, the plaintiffs are always having a liberty to move an application for deletion of the name of the deceased defendant. The plaintiffs were not seeking substitution of the deceased defendant and the application was simply moved for deletion of the names. Similarly, the application was moved for deletion of the name of other defendant, who also died during the pendency of the suit and there was no difficulty in allowing the application and permitting the plaintiffs to delete the names of the deceased defendants. In view of this Court, the order passed by the trial Court is not sustainable.

The approach of the trial Court was not correct in the facts and circumstances of the case, wherein the sole legal representative of the deceased defendant was already on record and the application was moved only seeking deletion of the name. Consequently, the Civil Revision is allowed. The impugned order dated 23.08.2025 is set aside and the Civil Suit No. 401-A/2023 is restored to its original number. The application moved by the plaintiffs for deletion of the names of defendant Nos. 2 & 3 is allowed and the plaintiffs are permitted to delete the names of defendant Nos. 2 & 3 from the array of the parties of the suit and continue the suit against the defendant No. 1. The parties will appear before the trial Court on 05.10.2026.

A copy of this order be forwarded to the concerned trial Court.

With the aforesaid, the present Civil Revision is disposed of.