Sabhajeet Yadav, J. - (1.) -By this petition, the petitioner has challenged the order dated 15.1.2001, passed by Vth Additional District Judge, Varanasi contained in Annexure-6 of the writ petition, whereby misc. appeal filed by the petitioner has been dismissed as abated in its entirety.
(2.) THE brief facts leading to the case are that the petitioner filed Suit No. 375 of 1981 in the Court of Civil Judge, Varanasi for cancellation and declaration that sale deed dated 14th September, 1979 registered on 16th October, 1979 alleged to have been executed by Rajesh Kumar Agrawal son of the petitioner in favour of defendant Nos. 1 and 2 in respect of half share in house No. CK-16/45-46 Sewak Ram Sadawarti Gali, Varanasi for a sum of Rs. 48,000 is absolutely null and void and invalid and defendant Nos. 1 and 2 do not get any right or title of any kind in the half portion of the said house in question and information of the said fact be sent to the Registrar, Varanasi. It is stated that the aforesaid suit was filed with the allegation that Rajesh Kumar Agrawal son of the petitioner had executed the sale deed in question in favour of the defendants No. 1 Rajendra Kumar and defendant No. 2 Smt. Puspa Devi wife of Rajendra Kumar without any sale consideration allegedly for Rs. 48,000, therefore, it is absolutely forged, illegal and void. It was also stated in the plaint that the aforesaid house was self acquired property of petitioner's father late Prahlad Das and that the plaintiff petitioner and Smt. Shrimani Devi and Smt. Kamla Devi who had joined as co-plaintiffs No. 2 and 3 respectively in the suit with the petitioner, being sisters of the petitioner, were co-owners of the house in dispute, in which no partition has yet been taken place. In the said suit the vendee Sri Rajendra Kumar was impleaded as defendant No. 1 and another vendee Smt. Pushpa Devi wife of Rajendra Kumar as defendant No. 2 and Rajesh Kumar Agrawal son of the petitioner who had executed the sale deed in favour of defendants No. 1 and 2 was also impleaded as defendant No. 3. The aforesaid suit was dismissed in default vide order dated 27.4.1984. Against the said dismissal, application for setting aside the order of dismissal in default was moved under Order IX, Rule 9, C.P.C. which was dismissed vide judgment and order dated 27.7.1990. Feeling aggrieved against the aforesaid order dated 27.7.1990 a misc. appeal under Order XLIII, Rule 1 was filed by the petitioner in the form of first appeal from order before this Court which was numbered as F.A.F.O. No. 1063 of 1990. In the said appeal Smt. Shrimani Devi (plaintiff No. 2) and Smt. Kamla Devi (plaintiff No. 3) had not joined the petitioner as co-appellants reason best known to them, as such the petitioner has impleaded them as proforma respondent Nos. 4 and 5 respectively. The aforesaid appeal remained pending in this Court from 1990 to 1996. Subsequently on enhancement of pecuniary jurisdiction of lower court, the said appeal was transferred and remitted back to the District Judge, Varanasi which was made over for disposal to Vth Additional District Judge, Varanasi on 1.12.1997. It is stated in the writ petition that the parties appeared in the Court of Vth Additional District Judge, Varanasi in response to the notices issued for appearance. During pendency of the said appeal defendant-Rajesh Kumar Agrawal (respondent No. 3 in appeal) died on 13.7.2000 and an application for substitution of his heirs was filed on 4.9.2000, which was within time, as such the said substitution application was allowed by the court below. Thereafter defendant Nos. 1 and 2 filed Paper No. 19 Kha on 22.11.2000 stating therein that Smt. Shrimani Devi, who was impleaded as proforma respondent No. 4 in the misc. appeal referred above, who was real sister of petitioner plaintiff had died in the year 1994 and the plaintiff petitioner had full knowledge of her death but no application for substitution of her heirs and legal representatives has been filed within time, accordingly the said appeal should be dismissed as abated.
(3.) AGAINST the aforesaid application the plaintiff petitioner filed Paper No. 20 Kha on 29.11.2000 for substitution of heirs of deceased Smt. Shrimani Devi respondent No. 4 in the said appeal supported by an affidavit. Later on an application under Section 5 of the Limitation Act supported by an affidavit was also filed for condoning the delay in filing substitution application on 1.12.2000 for substituting the heirs and legal representatives of Smt. Shrimani Devi who was impleaded as proforma respondent No. 4 in said misc. appeal. The respondent Nos. 2 and 3 here in this petition, who are defendant Nos. 1 and 2 in the suit, filed objection against the said substitution application. The aforesaid applications and affidavits are on record as Annexures-1, 2, 3, 4 and 5 of the writ petition. Thereafter Vth Additional District Judge, Varanasi rejected the application for substitution of heirs of deceased Smt. Shrimani Devi respondent No. 4 and also dismissed the entire appeal as abated vide impugned order dated 15.1.2001. The impugned order is on record as Annexure-6 of the writ petition. Thereafter the petitioner filed review application but the same was dismissed as not pressed, as the instant writ petition is filed challenging the said order. While assailing the judgment of court below, the learned counsel for the petitioner Sri Manish Goel has submitted that in facts and circumstances stated in the affidavit filed in support of delay condontation application moved with the substitution application to bring the heirs and legal representatives of Smt. Shrimani Devi on record, the delay ought to have been condoned and abatement ought to have been set aside by the court below but instead of doing so, the court below fell in error in dismissing the appeal as abated in its entirety. He further submitted that even if the heirs and legal representatives of Smt. Shrimani Devi are not substituted and are not brought on record, even then the entire appeal could not have been dismissed in-toto as abated, for the simple reason that in the suit in question the petitioner as one of the plaintiffs has joined Smt. Shrimani Devi and Smt. Kamla Devi as co-plaintiffs No. 2 and 3 merely for the sake of convenience, although their rights are independent, distinct and separate. However, when they did not join as co-appellants at the time of filing of misc. appeal, the petitioner has impleaded them as proforma respondent Nos. 4 and 5 respectively in the misc. appeal, while elaborating his arguments, he has further submitted that although the petitioner has independent and distinct right from respondent Nos. 4 and 5 in the said appeal but because of similarity of claims he has joined them in a single litigation to vindicate their rights as plaintiff Nos. 2 and 3 respectively in the suit. Similarity of claims cannot be justification in law to treat their claims as single and inseparable or indivisible for all the purposes. The suit itself is pending and no hearing has taken place, in that view of the matter, it cannot be said that omission to bring the legal representatives and heirs of deceased Smt. Shrimani Devi on record, the decree to be passed therein would be rendered of such a conflicting nature, which cannot be possibly executed. According to him, the approach of court below is wholly erroenous and is also otherwise contrary to law inasmuch as contrary to the recent Constitution Bench decision rendered in S. Amarjit Singh Karla and others v. Smt. Pramod Gupta and others, AIR 2003 SC 2588.;