- (1.) The present petition has been filed by the plaintiff Nos. 1 & 2 praying for recording the death of plaintiff No. 3 and causing an entry to be made on the record to the effect that the right to sue survives to the plaintiff Nos. 1 & 2 and for recording the death of defendant No.4 and causing an entry to be made on the record to the effect that the right of plaintiff Nos. 1 & 2 to sue survives against the surviving defendants and in the alternative to exempt the plaintiff from necessity of substituting the legal representative of the deceased defendant No.4. Contesting defendant No.2 has opposed the prayer by filing affidavit-in-opposition.
(2.) The learned Counsel, Mr. Purohit appearing for plaintiff Nos. 1 & 2 submits that in all 990 shares were purchased of which 660 shares were purchased by plaintiff No.3 and the remaining 330 shares were purchased jointly by the plaintiff Nos. 1 & 2 and upon the defendant No.1 refusing to register transfer of the said respective shares in favour of the plaintiffs on the purported ground of receiving a prohibitory order from income tax officer, defendant No.3, plaintiff filed the present suit. Subsequently, defendant No.1 registered 330 shares in favour of plaintiff No.3 out of the 660 shares were purchased by him. He, further, submits that of the balance 660 shares which the defendant No.1 failed and neglected to register, the 330 shares belonged jointly to plaintiff Nos. 1 & 2 and remaining 330 shares belonged to plaintiff No.3 for which the shares of plaintiff Nos. 1 & 2 are quite distinct and separate from the shares belonging to plaintiff No.3. Mr. Purohit further contends that plaintiff No.3 died long time back but plaintiff Nos. 1 & 2 were not aware of his death. Under such circumstances the right to sue clearly survives to the plaintiff Nos. 1 & 2 in respect of their 330 shares which have not been registered. Mr. Purohit also submits that in spite of service of summons upon the defendants, the latter did not appear, for which pursuant to direction of this Hon'ble Court, fresh notice was issued upon the defendants and from the service return it came to the knowledge of the plaintiff Nos. 1 & 2 that defendant No. 4 had died. He refers to the letter of the defendant No.1 dated 6.6.1987 which is annexure-D to the plaint and submits that the same clearly shows that defendant No.4 was erstwhile holder of the shares purchased by plaintiff No. 3. Mr. Purohit also points to the letter dated 22.08.2011 of the defendant No.1 addressed to plaintiff No.l and submits that defendant No.4 is not concerned with the plaintiff Nos. 1 & 2 and accordingly the suit can proceed at the instance of the plaintiff Nos. 1 & 2 against the surviving defendants. He, further, refers to the provisions of rule 4 (4) of order 22 of the Civil Procedure Code and submits that the defendant No.4 having appeared but not filed written statement, plaintiffs in the alternative may be exempted from the necessity of substituting the legal representatives of the defendant No.4.
(3.) Mr. Dutta appearing for the defendant No.2 on the other hand submits that the present application is wholly misconceived as the present suit has already abated by operation of law and no application has been preferred by the plaintiffs for setting aside abatement of the suit. He, further, submits that the instant suit was instituted on the basis of a common cause of action and upon demise of the plaintiff No. 3, the right to sue cannot survive upon the surviving plaintiff Nos. 1 & 2. He, further, submits that the said plaintiff Nos. 1 & 2 having failed to substitute the deceased plaintiff No.4 by his legal heirs within the statutory period of limitation, suit has abated in its entirety. Mr. Dutta also contends that in the plaint specific reliefs have been prayed for against defendant No.4 and as the heirs of the said deceased defendant No.4 have not been substituted in his place, the present suit has abated in its entirety.;