Decided on March 07,1991

SARWAN Appellant
Dharmu And Others Respondents


Devinder Gupta, J. - (1.) In this appeal, the plaintiff has challenged the judgment and decree passed by the District Judge, Hamirpur and Una Districts at Una, on December 18,1980, dismissing his appeal and thereby confirming the order passed on February 17, 1978 by Additional Sub Judge, Hamirpur, dismissing his suit as having abated.
(2.) On October 13, 1970, the appellant, alongwilh one Sudama filed a suit for grant of decree for declaration that they alongwith Gian Chand, proforma respondent No. 13 were in occupation of the property in suit as tenant without payment of rent and were entitled to continue to remain as such and by way of consequential relief claimed a decree for injunction restraining defendants-respondents No. 1 to 12 from interfering with their possession over the disputed property. It was alleged in the plaint that the suit property was owned by defendants No. 4 to 12 and in revenue records it was shown to be in occupation of the plaintiffs defendants No. 1 to 3 and proforma defendant No. 13 as non-occupancy tenant without payment of rent. It was further alleged that it was Radhu, the predecessor of plaintiffs and proforma defendant No. 13, who had broken upon the land and that they alone were in exclusive occupation thereof. Defendants No. 1 to 3 or their predecessors never occupied the suit property, nor they resided within the revenue estate but were residing in a different revenue estate. It was further pleaded that defendants No. 24 to 12 in connivance with defendants No. 1 to 3 had started advancing threats to the plaintiffs of being dispossessed by claiming that defendants No. 1 to 3 had relinquished their 3/4th tenancy rights in their favour. Though the plaintiffs denied that defendants No. 1 to 3 had any interest in the tenancy rights yet it was pleaded that even if such a right existed in favour of defendants No. 1 to 3 even in that case relinquishment of tenancy rights by them in favour of defendants No. 4 to 12 would not effect the rights of plaintiffs and irrespective of such relinquishment they were entitled to occupy the entire suit land. In nutshell, it was alleged that even if defendants No. 1 to 3 are held to be tenants alongwith plaintiffs even in that case the relinquishment, if any, was not legal and binding upon their rights. Defendants No. 1 to 3 did not put in appearance. Suit was contested only by defendants No. 4 to 12 by filing written statement on January 21, 1978 and denying the claim of the plaintiff and defendants No. 1 to 3 to be tenants. Defendants, on the other hand, claimed that defendants No. 1 to 3 had surrendered their tenancy rights in their favour on the basis of a written deed of relinquishment for which due compensation had been paid by them to defendants No. 1 to 3. It was also pleaded by them that Sudama plaintiff had died during the pendency of the suit, his legal representatives were not brought on record but the surviving plaintiff Sarwan got his name deleted from the array of plaintiffs and in order to avoid complication they brought on record defendants No. 1 to 3 who on such request surrendered their rights on receipt of compensation. It was during the pendency of the suit that on September 20, 1972, an application was made by plaintiff-appellant under Order 22 rule 2 read with order 1 rule 10 C.P.C. seeking to have the name of Sudama plaintiff deleted on the ground that he had died during the pendency of the suit and his heirs had declined to join the plaintiff in the suit or to get themselves impleaded as legal representatives on record. In the application, it was averred that nature of the suit was such that he alone was entitled to claim decree prayed for in the suit. When the application was presented, even the service in the suit was not complete and no written statement had been filed by any one of the defendants who had been served. Proceedings in the suit did not take place for a period of more than three years and even thereafter it was only on January 21,1978, that after the defendants were served, the written statement was filed by defendants No. 4 to 12 and on February 17, 1978, when the case was taken up for framing issues, it came to the notice of the court, on the basis of the averments made in the written statement that Sudama plaintiff had died. At this stage, statement of Sarwan plaintiff was recorded, who stated that Sudama died 5-6 years ago and had left behind one son, three daughters and a widow. On the same day, the court dismissed the suit as having abated on the ground that a joint declaration was claimed by the plaintiffs and interest of the deceased plaintiff was not separable. The appeal preferred by the appellant, against the decision of the trial court, before the lower appellate court was also dismissed. The appellant has now approached this court by filing the instant appeal seeking to quash the judgment and decree of the lower appellate court and the order of the trial court.
(3.) I have considered the arguments of the learned counsel for the parties and perused the records. In so far as the question of abatement of ; suit is concerned, the same will have to be considered with reference to the subject matter of the suit In a suit so long as the cause of action survives to the surviving plaintiff(s), there cannot ' be any abatement in relation to the said cause of action. It may be that the suit may not be maintainable for want of necessary parties before the court. The suit was at the initial stage and no decree had been passed. It was necessary for the courts to have seen whether the suit as laid was competent and maintainable by the surviving plaintiff(s) alone for the cause of action and the relief. The Courts below have applied the provisions of sub-rule (2) of Order 22 rule 3 C.P.C. by holding that as within the time limited by law no application had been made under sub-rule (1), the suit had abated in toto. Order 22 rule 3 C.P.C. will apply only when right to sue does not survive, and where there are several plaintiffs, to the surviving plaintiff(s) but survives either to the surviving plaintiffs jointly with others or exclusively to others. On the other hand, if the right to sue survives to the surviving plaintiffs, the case would not fall within this rule. The word 'alone occurring in Order 22 rule 3 C.P.C. should mean "to the exclusion of others". However, so long as the right to sue survives to the surviving plaintiff(s) also, there cannot be total abatement of suit. In fact there cannot be any abatement, if the cause of action survives.;

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