Reserved IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (M/S) No. 456 of 2008 Gaon Sabha Ibrahimpur Deh …….Petitioner. Versus Mahmood and others …Respondents. Present : Sri Lok Pal Singh, Advocate present for the petitioner. Sri Sanjeev Singh, Advocate present for the respondents. Hon’ble Sudhanshu Dhulia, J. 1. Heard Sri Lok Pal Singh, Advocate appearing for the petitioner as well as Sri Sanjeev Singh, Advocate appearing for the respondents, at length. 2. This is a writ petition of the plaintiff/appellant (petitioner before this Court) against the order of the learned Additional District Judge, Roorkee, Haridwar dated 30.11.2006, whereby the appeal of the appellant/petitioner has been dismissed as abated. 3. Brief facts of the case are that plaintiff no. 1, which is “Gram Sabha, Ibrahimpur Deh, Pargana Bhagwanpur, Tehsil Roorkee, District Haridwar and plaintiff no. 2 Kusum Pal had filed a suit before 2nd Additional Civil Judge (J.D.), Roorkee, Haridwar on behalf of “Gram Sabha, Ibrahimpur Deh” seeking permanent injunction against the four defendants, namely, Mahmood, Majeed, Hasmat and Mohabbat. Vide order dated 23.12.1997, the said suit was partly decreed and permanent injunction was granted only as regarding part of the property of the suit. Against the said order, the plaintiff preferred an appeal being Civil Appeal No. 15/2000. During the 2 pendency of the appeal, respondents/defendant nos. 1 to 3, namely, Mahmood, Majeed and Hasmat passed away. By an application, moved by the plaintiff, against their names simply the word “deceased” was added. Much later, defendant/respondent no. 4 moved an application before the court saying that since defendant/respondent nos. 1 to 3 have died and their heirs have not been substituted by the plaintiff/appellant, the suit in fact abates against the defendants. The court accepted the arguments of defendant/respondent no. 4. In favour of his contention, the counsel for defendant/respondent no. 4 relied upon two rulings, namely, Babu Sukhram Singh v. Ram Dular Singh and others AIR 1973 SC 204 and Jaisri Sahu v. Rajdewan Dubey and others AIR 1962 SC 83. 4. In short, what has been laid down by the Supreme Court in the aforesaid two cases is that the matter would abate against all the defendants, in case there is a joint claim or a joint decree against all the defendants. However, whether this is a case in the present case has not been pleaded. Therefore, in view of this Court, the two rulings, on which reliance has been placed by the court below, may only be applicable to the facts of the case cited by defendant no. 4 and not to the present case. Moreover, Order XXII Rule 1 C.P.C. clearly states that merely by death of a defendant, the suit shall not abate, if the right to sue survives. This aspect has not been considered by the court below. Therefore, the order dated 30.11.2006 passed by the learned Additional District Judge, Roorkee, Haridwar is set aside. The matter is remanded back to the court below for fresh adjudication 3 in accordance with the provision laid down in Order XXII Rule 1 C.P.C. and in accordance with law. 5. With these observations, Writ petition is disposed of. No order as to costs. (Sudhanshu Dhulia, J.) 24.12.2010 Avneet