IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1922 of 2008 JANARDAN SINGH & ORS Versus DEEPNARAIN MISHRA & ANR ----------- For the petitioners: M/S S.K.Verma, Sr. Advocate & Jitendra Kishore Verma,Advocate. ---------- 2 20/11/2008 Heard counsel for the defendant- petitioners. All that has been done by the impugned order is that the suit for permanent injunction filed by the plaintiffs-opposite parties has been found to have not abated as a whole, as was sought to be canvassed by the petitioners by filing application dated 30.5.2007. This Court having perused the plaint which is Annexure-1 would itself find that the suit in question is out and out a suit for injunction as would be evident from the different averments made in the plaint. It is true that the plaintiffs in order to get this relief, while supporting their case of title had gone to project that whatever issue that had been raised by the defendants in their defence pertaining to their title, on the basis of which they had resisted 2 the decree for injunction was not tenable. However, such plea taken as a whole in the context of relief would still leave the suit one for permanent injunction only. If that be so, can it said that the suit for permanent injunction filed against several defendants would abate only because one of them had died during pendency of the suit and his heirs were not brought on records by substituting him?. The obvious answer will be in negative. Mr. Verma, learned Senior counsel appearing on behalf of the petitioners would however seriously contend that the suit itself would become incompetent because the sale deed in question on the basis of which the defendants-petitioners had claimed their title and sought to resist decree for injunction, which was sought for by the plaintiffs-opposite parties, was in the name of all the four brothers. This part of the submission, however must be nipped in bud in as much as, four brothers who are referred in the 3 plaint are not the necessary parties to the suit because the defendant nos. 1, 2 and 3 are not his own brothers. That apart, as to whether principles of abatement under Order 22 Rule 4 of the Code of Civil Procedure will be made applicable only because the defendant no.3 died during pendency of the suit and the plaintiff only chose to delete his name by filing an application in view of the fact that the case should not linger because it would also emerge from the reading of the plaint is that as a matter of fact there is no specific allegation against the defendant no.3 in the plaint at any place. In that view of the matter, plain and simple prayer of injunction against defendant no. 3 on his death would now leave the suit for injunction only against defendant nos. 1, 2 and 4. This aspect of the matter has to be now considered in the light of the principles of abatement. Order 22 Rule 1 of the C.P.C. lays down that death of a plaintiff or defendant shall not cause 4 the suit to abate if the right to sue still survives. Reading out the principles under Rules 2 and 3 Order 22 of the Code if now one goes to the principles as laid down under Order 22 Rule 4 of the Code the same clearly envisages that where one of two or more defendants dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit. Thus from reading of the aforesaid provisions of order 22 of C.P.C. it becomes clear that for deciding the issue for abatement, the crucial test is and would always be, as to whether the right to sue would survive against remaining persons even after the death of one of the party to the suit. Judged from this angle this court would find that in a suit for permanent injunction where a number of persons are alleged to be obstructing right of the plaintiff and where a prayer is made that they should 5 be stopped from interfering with the possession of the plaintiffs, such suit would not abate only on account of death of one of the defendant as the right to sue would still survive against the remaining defendants. This aspect of matter is also well settled not only in the judgment of division bench of this court in the case of Gajo Singh and others Vs. Amrit Singh reported in AIR 1921 Patna 350 but also in the judgments Bombay High Court in the case of “Kosarichand Motichand Shah vs. Fakirbhai Kariabhai Kole & Ors.” reported in 1995 Bombay 102, and Punjab and Haryana High Court in the case of “Murti Hanuman Brajman Hanuman Mandir, Hissar & Ors.Vs. Punjab Walkaf Board & Ors.“ reported in 1984 Punjab and Hariyana 239. Mr. Verma, however has placed reliance on the judgment of this Court in the case of “Gobind Lal Vs. Bandhu Ram Kahar“ reported in 1961 Patna 240. In the opinion of this Court, the ratio of the said judgment will not be applicable in the facts of this case, in as much as in 6 that case when the decree was sought against all of them, on a common cause of action, and in that context this Court had held that on the death of one of the defendant and his not being substituted the whole suit had become incompetent and had thus abated. Mr. Verma then tried to support his view by placing reliance on the decision of the Jammu and Kashmir High Court in the case of “Thakur Das & Ors. Vs. Indru & Ors.” reported in A.I.R 1982 NOC 116. Unfortunately, the placitum of the NOC would not give any indication to the facts of the case and even otherwise when it chooses to distinguish the decision of a Division Bench of Patna High Court in the case of “Gajo Singh (supra) this Court would have no hesitation in following the ratio of a binding precedent in the case of Gajo Singh (supra) in preference to the view taken by Jammu and Kashmir High Court. As a matter of fact, in the same and similar situation, this Court in the case of Gajo Singh (Supra) has gone to hold that in a 7 suit seeking damage against many persons when one or few of the defendants had died during pendency of the appeal. The suit and the consequential appeal did not abate. A closer analysis of the judgment of this Court in Gajo Singh (supra) would reveal that the facts of that case are also same and identical as in the present case as would be apparent from the following passage of the judgment of Gajo Singh (supra). “The first question in these appeals is as to the effect on the decree on this failure to substitute the heirs of these defendants. It was contended for the appellants-judgment-debtors, that the whole appeal abated and that the decree is a nullity. Reference was made to Order XXII, rule 4. But all that that rule provides is that, when one of several defendants dies and the right to sue does not survive against the others alone (as in the present case), then, if the heirs of the deceased defendant are not substituted, the suit abates as against that defendant. The rule does not provide that the whole suit abates. The appellants are on the horns of a dilemma. If the interest of the defendants is joint, then the right to sue survives against the surviving defendants alone. If substitution is necessary, as in the present case, it is because the interest of the defendants is separate, and, consequently, there is no 8 reason why the suit should not proceed against the surviving defendants. The defendants are joint tort-feasors. A plaintiff has never been required to join as defendant every person who is liable for the tort. The liability of others is no defence for those sued because the liability is joint and several. The only effect of suing some only out of a number of joint tort-feasors is that the judgment recovered against them bars a suit against the others. The decree in the present suit is a good decree against those who were living parties to it.” In the opinion of this Court, if the petitioners being defendants in the suit had their defined joint interest with defendant no.3, whose death and non substitution has led to the controversy for abatement of the suit in such event the right to sue for injunction will definitely survive against the remaining defendant i.e. the petitioners. If however a plea is taken by the petitioner that the substitution is necessary because interest of the defendants- petitioners is separate then also the suit would not abate and can proceed against them as the right to sue would still survive with the plaintiff as 9 against the remaining defendants. Next question would be whether the impugned order would amount to jurisdictional error when similar contention had already been raised by the defendant-petitioners and rejected by the court below by earlier order dated 25.4.2007 which was allowed to become final. It has to be noted that when defendant no.3 died on 25.10.2006 an application was filed by the plaintiff on 8.1.2007 praying therein that the name of defendant no.3 should be struck off, but when such application was pressed by the plaintiff, serious objection was raised by the petitioners being defendants in the suit that such application should be dismissed in view of the fact that the suit has already abated as against defendant no.3 Such prayer of the petitioner had been considered and was rejected by the order dated 25.4.2007, but the petitioners did not choose to assail the same before this Court and allowed the same to become final. In the opinion of this Court filing of 10 application dated 30.5.2007 thus would virtually amount to seeking review of the order dated 25.4.2007. Accordingly, the court below has not committed any jurisdictional error in refusing such prayer because admittedly there is no error apparent on the face of record in the order of the court below dated 25.4.2007 in terms of order 47 Rule 1 C.P.C. This court infact must deprecate the practice of seeking recall of well considered order under the garb of Section 151 C.P.C., by giving a complete go bye to the requirement and fulfillment of principles of review under order 47 C.P.C. That being so, this Court would not find any error in the impugned order. Accordingly, this application being devoid of any merit must be and is hereby dismissed. ( Mihir Kumar Jha, J. ) Abhay