- (1.) HEARD counsel appearing on behalf of the petitioner as well as counsel for the respondents.
(2.) PLEADINGS have been exchanged. The writ petition has been listed for 'Admission' and as agreed between the parties, I proceed to decide the matter finally at the stage of 'Admission' itself. Respective counsels have also agreed to argue the case to resolve the controversy finally. The grievance of the petitioner - defendant is that in the original Title Suit No. 70A of 1982, an order was passed on 26th March, 2010 by the Subordinate Judge-VI, Hazaribagh substituting the heirs of the deceased/appellant. The facts are an injunction suit was instituted against two defendants namely Asharfi Lal Sahu and Chandrakanta Devi. The defendant No. 2 Chandrakanta Devi died and by means of the impugned order, her heirs have been allowed to be substituted. The substitution application preferred before the Court below was allowed and the same is the subject-matter of dispute in the instant writ petition. The original suit was decreed and the first appeal against the said order was dismissed. The matter has been remanded to the trial Judge by the High Court in a second appeal.
(3.) THIS is a case where the defendant No. 1 Asharphi Lal Sahu is also reported to be dead. The objection of the learned counsel is two fold: 1. First, that in the substitution application it was not declared that the 'right to sue' exists; since and the injunction was granted against the two contesting defendants and also in favour of the two plaintiffs in persona and therefore, in absence of a specific assertion that "right to sue survives", the substitution could not be allowed. Therefore, the suit should stand abated. 2. The second objection is that the petitioner's were not noticed on the substitution application. The counsel for the petitioner has cited decision in the case of Korarichand Motichand Shah v. Fakirbhai Kariabhai Koli and others, reported in AIR 1995 Bom 102 in support of his contention. In this case, there were several defendants and an interim injunction was granted but after death of one of the defendants, the other surviving defendants' right continued to exist and therefore, the Court dispelled the objection raised in the said substitution application. Assertion of the learned counsel is that in the instant case, both the plaintiffs were dead and therefore it was necessary to mention whether the 'right to sue' continues to exist or not.;