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Ashgar Ali Vs. Mohd. Taqi and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCriminal Revision No. 649 of 1981
Judge
Reported in21(1982)DLT63; 1982(3)DRJ248; 1982RLR425
ActsCode of Civil Procedure (CPC), 1908 - Order 1, Rule 10
AppellantAshgar Ali
RespondentMohd. Taqi and ors.
Advocates: S.R. Khandelwal,; K.K. Sharma,; K.L. Sethi and;
Excerpt:
code of civil procedure - order 1 rule 10. the application under order 1, rule 10 cpc for deleting the name of defendant after the his death is not maintainable. the remedy was only under order 22, rule 4. the failure to bring on record heirs of the deceased respondent means abatement of the suit against all the defendants. - - thus failure to bring on record heirs of the deceased respondent means abatement of the suit against all the defendants......the suit of the petitioner has abated.(2) briefly the facts are that on 5.6.1967 the plaintiff filed a suit for possession against the seven defendants namley, mohd. taqi, mohd. naqi, munnan, mashuq ali, abdur razzaq and municipal corporation of delhi alleging that he had been in occupation of the ground floor of house no. 2080, mohalla rodgran, bazar lal kuan, delhi since 1948, that initially he 249 was atenant under the custodian of evanuee property new delhi but later on, when the property was transferred to the municipal corporattion of delhi, became a tenant under the corporation on a monthly rent of rs. 6.00 , that on 21.8.1665 the defendants illegally and forcibly entered and took possession of the house along with articles worth about rs. 7000.00 , that defendants no. i to 4.....
Judgment:

Sultan Singh, J.

(1) This revision by the plaintiff under section 115 of the Code of Civil Procedure is directed against the judgment and order dated 7.3.1981 of the Subordinate Judge Delhi holding that the suit of the petitioner has abated.

(2) Briefly the facts are that on 5.6.1967 the plaintiff filed a suit for possession against the seven defendants namley, Mohd. Taqi, Mohd. Naqi, Munnan, Mashuq Ali, Abdur Razzaq and Municipal Corporation of Delhi alleging that he had been in occupation of the ground floor of house No. 2080, Mohalla Rodgran, Bazar Lal Kuan, Delhi since 1948, that initially he 249 was atenant under the Custodian of Evanuee Property New Delhi but later on, when the property was transferred to the Municipal Corporattion of Delhi, became a tenant under the Corporation on a monthly rent of Rs. 6.00 , that on 21.8.1665 the defendants illegally and forcibly entered and took possession of the house along with articles worth about Rs. 7000.00 , that defendants No. I to 4 illegally inducted Abdul Razzaq and Mustaq Ali. (There is no defendant by the name of Mushtaq Ali in the heading of the plaint so it seems that the correct name is Mushuq Ali). The defendants contested the suit. It was submitred that the tenancy of the plaintiff was terminated on 23.10.1965 and thereforee, he ceased to be tenant under the Corporation. The Corporation in its written statement stated that plaintiff was a tenant in a portion of the said house at Rs. 6.00 per month, that his tenancy wrs terminated on 23.10.1965 and thereforee, he ceased to be a tenant. It was also alleged that Mohd. Nagi was the legal tenant in the premises. The management of this property was transferred by .the Municipal Corporation of Delhi to the Delhi Development Authority and thereforee, the Delhi Development Authority was substituted in place of the Municipal Corporation of Delhi vide order dated 27.2.1975.

(3) The plaintiff claimed possession against all the defendants as he alleged that he was dispossessed by all of them. On 5.7.1977 the defendants filed an application under Order 22 Rule 4 and section 151 of the Code of Civil Procedure alleging that Mashuq Ali defendant No. 5 had died more than five months before, that plaintiff was aware of his death, that he did not take steps to bring his legal representatives on record, that the cause of action against all the defendants was joint and indivisible and thereforee, the suit abated against all the defendants. The plaintiff contested this application and also filed another application under Order I Rule 10 of the Code of Civil Procedure for striking out the name of Mashuq Ali defendant No. 5 alleging that his name was improperly joined in the plaint as a defendant) that he had not filed any written statement, that the right to sue survives againt the other defendants. It was thereforee, prayed that the name of defendant No. 5 Mashuq Ali be struck out. The trial Court by the impugned order dated 7.3.1981 accepted the application of the defendants holding that the suit had abated against all defendants and rejected the application of the plaintiff. Hence this revision.

(4) The learned counsel for the respondents submits that the revision is barred by time, that the impugned order is appearlable and thereforee no revision lies. The impugned order was passed on 7.3.1981. A certified copy was applied on 30.3.1981 and the same was ready on that date for delivery. The revision petition was filed in this Court on 9.7.1981. After excluding the time of one day spent in obtating the certified copy, the revision is barred by time. The learned counsel for the petitioner submits that the certified copy as originally delivered to him did not contain the suit number, that he made an application to the Court for mentioning the suit number. According to the endorsement on the certified copy the suit number was given vide order dated 25.5.1961. It is not clear from the record when the application for correcting the suit number was made. From the certified copy it appears that an order was passed for giving the suit number on 25.5.1981 and correction was made on the certified copy on 27.5.1981. In other words three days were spent by the petitioner in getting the copy corrected, Even after excluding these three days, the revision is barred by time,

(5) Under section 115 of the Code of Civil Procedure revision against an order, in which no appeal lies, can be filed. The learned counsel for the respondents submits that the impugned order is appealable under Order 43 Rule 1 (k) of the Code. The impugned order is to the effect that on the death of Mashuq Ali defendant No. 5 the suit stood abated. The defendants filed the application, for passing such an order while the plaintiff instead of bringing on record the legal heirs of the deceased defendant, filed an application for striking of his name. The trial Court dismissed the plaintiff's application and held that the suit stood abated. In other words the trial Court refused to set aside the abatement. Such an order is appealable within the meaning of clause (k) of Rule 1 of Order 43 of the Code. As the the impugned order is appealable revision is not maintainable under section 115 of the Code.

(6) Even on merits the suit of the plaintiff has abated against all the deferdants. The plaintiff claimed restoration of possession against all the defendants who were alleged to have dispossessed him. According to the plaintiff he was a tenant while the defendants were trespassers. If one of the defendants, trespassers dies, it is necessary that his heirs are brought on record The relief claimed by the plaintiff is joint and indivisible against all the defendants. If the heirs of the deceased-defendant are not brought on record, there would be conflicting decrees. In Hakir Mohamed and others v. Abdal Majid and others A. I. R.1 953 Calc 588 it has been held that a co-trespasser, who had participated in the trespass, if dies and his heirs are not brought on record, the whole suit abates. It is not correct to say that the deceased-defendant has not filed the written statement. On record there is written statement dated 2.5.1976 on his behalf. After his death his name could have been deleted under Order 22 Rule 2 of the Code of Civil Procedure if the right to sue survived against survivng defendants. If such a right did not survive the suit abated, as his heirs were not brought on record. The application under Order I Rule I Oof the Code of Civil Procedure by the Plaintiff for deleting the name of a. defendant after his death is not maintainable. The remedy of the plaintiff was only either under Rule 2 or Rule 4 of Order 22 of the Code. Order 22 Rule 2 of the Code of Civil Procedure is not applicable to the facts. Thus failure to bring on record heirs of the deceased respondent means abatement of the suit against all the defendants. There is no infirmity in the judgment of the trial Court. The revision is thereforee, dismissed with no order as to casts.


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