1. This is plaintiff's second appeal whose suit for the grant of the permanent injunction has been dismissed as having abated by both the Courts below.
2. The plaintiff Murti Hanuman Brajman Mandir, Hissar, filed the suit for the grant of the permanent injunction restraining the defendants from taking forcible possession and raising unauthorised construction on the chowk and the verandah, in dispute. The suit was originally filed against seven defendants. During the pendency of the suit, one of the defendants Parma Nand, died on June 4, 1970. The suit was instituted on May 19, 1970. The application for bringing the legal representative of the deceased defendant on record was filed on December 2, 1972. Along with the said application, an application under Section 5 of the Limitation Act, for condonation of delay in bringing the above said application was also made. Therein, the trial Court found that there was no ground for the extension of the time as the plaintiff knew the factum of the death of Parma Nand, defendant, earlier and consequently dismissed the application. It further found that the suit had abated as a whole. Thus, the suit was dismissed as having abated. In appeal, the learned Senior Subordinate Judge with enhanced appellate powers affirmed the said findings of the trial Court and, thus, maintained the decree passed by it. Dissatisfied with the same, the plaintiff has come up in second appeal to this Court.
3. The learned counsel for the appellant contended that it was a fit case where the time should have been extended for bringing the legal representatives of Parma Nand, defendant, on record by the trial Court itself as the counsel for the deceased defendant had been appearing in the trial Court on his behalf and when lie brought to the notice that Parma Nand, defendant, had died, necessary application from bringing his legal representatives on the record was moved. In any cast, argued the learned counsel, the suit could not he dismissed as having abated in toto since it was a suit for the grant of the permanent injunction. In cast, according to the learned counsel, it Parma Nand, defendant, had died, then the question of obtaining any decree for the grant of the permanent injunction against him as such did not arise and, therefore, the suit could proceed against the remaining defendants, as the right to suit survived against them. On the other hand, the learned counsel for the defendants-respondents relied upon Abhe Singh alias Abhe Ram v. Zile Singh, (1974) 76 Pun LR 588, to contend that in a suit for possession of property all the trespassers in possession of the same are necessary parties to the suit, and such a suit could not be brought against some of them leaving out the others.
4. After hearing the learned counsel for the parties, I am of the considered opinion that the whole approach of the Courts below in dismissing the Plaintiff's suit as having abated in tote is wrong and unwarranted. The ratio of the decision in Abhe Singh's case (supra) relied upon by the learned counsel for the respondents has no appplicability to the facts. of the present case. Admittedly, the plaintiff filed the suit for the grant of the permanent injunction against the defendants restraining them from raising illegal construction etc. Thus, the defendants were alleged to be trespassers making encroachments upon the plaintiff's property. Since the suit was for the grant of the permanent injunction only, it could not be successfully argued on behalf of the defendants that the suit had abated as a whole because of the death of one or the defendants. In Abhe Singh's case (supra), the suit was filed for possession and not for the grant of permanent injunction and, therefore, the same is clearly distinguishable. In a suit for the grant of the permanent injunction, the right to sue survives even if one of the defendants has died and his legal representatives are not brought on the record.
5. In this view of the matter, this appeal succeeds and is allowed. The judgments and decrees of the Courts below are set aside, and the case is sent back to the trial Court for deciding it on merits in accordance with law. The parties have been directed to appear in the trial Court on February 20, 1984. The records of the case he sent back forthwith.
6. Appeal allowed.