SHAUKATALI ISIMDAR Vs. NARGESH DHANJISHAW JASSOOMANI

JUDGEMENT

(1.) This revision application is preferred against the order of the learned Judge of the City Civil Court passed on the plaintiffs' notice of motion in Suit No. 4411 of 1964, As an interesting point arises for decision, a few facts necessary for properly appreciating the same may be indicated.

(2.) ONE Dhanjishaw as the sole plaintiff filed Suit No. 4411 of 1964 in the Bombay City Civil Court at Bombay and sought orders in respect of land as per plan Ex. A to the plaint. A decree was sought against the two defendants to the suit Shaukatali Isimdar and Mohomad Ishaque and the plaintiff wanted them to hand over possession of the said land after removing certain structures standing thereon. Mesne profits and interlocutory orders were also sought. The first defendant thereafter filed his written statement in February 1965 inter alia putting the plaintiff to the strict proof of his ownership. It was further contended that the second defendant to the suit claimed ownership of the suit land by adverse possession and had given tenancies of portions thereof to several persons including the first defendant. The first defendant claims to be occupying an area of 42' X 90 and paying rent of Rs. 30 per month to the second defendant. It would appear that some time thereafter the original plaintiff died and his three heirs were substituted as plaintiffs 1 to 3, In addition plaintiff No. 4 who is alleged to have purchased the property from those three heirs was also joined as a co -plaintiff. In January 1977 an additional written statement was filed by the first defendant. It was contended in para. 5 thereof that the second defendant had expired in or about 1968 leaving behind him surviving his legal heirs and representatives. It was accordingly submitted in para. 5 and 6 of the said written statement that the suit had abated against the second defendant since his heirs and legal representatives were not brought on record, It was submitted further that the plaintiff was not entitled to proceed only against defendant No. 1, since the right to sue did not survive as against defendant No. 1 only. Accordingly it was submitted that the plaintiff's suit should be dismissed with costs.

(3.) NOW despite the additional written statement of the first defendant in which a contention has been raised that the second defendant had expired and despite the fact that the endorsement by the bailiff 'refused' postulates an attempt to serve a living person, the plaintiffs persisted in contending that the second defendant was a non -existent person. Thus they chose, whether of their own volition or on legal advice, to ignore the additional written statement. However, it appears that in March 1980 the first defendant desired to rely on certain additional documents and for that purpose an order was obtained from the trial Court on April J, 1980 permitting the defendants to disclose certain additional documents. One of these documents was the death certificate pertaining to the second defendant being certificate No, 2468 of 1977 issued by the Bombay Municipal Corporation and dated October 31, 1977. We are not concerned with the other documents which were sought to be discovered and relied upon at the trial. It may be stated that before that stage the trial had already commenced and plaintiffs' witness No. 1 had been examined on February 8, 1980, His cross -examination started on February 26, 1980 and concluded on March 9, 1980. Thereafter plaintiffs' witness No. 2 was also examined and his examination and cross -examination were concluded on March 7, 1980 and March 18, 1980 respectively. Even on March 18, 1980 plaintiffs' witness No. 2 who is plaintiff No. 2 himself maintained that Mohmed Ishaque, the second defendant, did not exist at all.