v '\ c . f'\0»\ SSNGLE uEKCH 3 /•/-»1 TONER/; (PiainTif-f P.R.NO .fc\ AT 01 r- .R. WO-—— _. _..^(OJ;.BAK' ^^sS^- dated.""^"" &5" /" Trust Shri Laxminarayan Maharaj "Kila AAandir Dur< Throuqh its Main Trustee S/o Late Shrl &au Parmanan! Agrawal, Aged about 59 year ft/o Boniyapara, Durg, Tehsii & &istrict: Durq, Chhatt'isQarh, RESPONDENTS: fl'lo- ^i->f%r <"' Vasu Deo. tu// V iu.l^ <^c^ SewffffS %i^^8py& c^^to ^ G' »/oLate Shrl Thadama! Lohani. ioth residents of Subhash Chowk, Motipara, burg, Tehsi! <& itate of Chhattisgarh, Throuqh The Collector, Durg, District: Durq, Chhattisqarh (in the cause title of the order imouoned mentioned as 5tcte •y»- i^^r^T^* Q^T'TT'T/'^^.I ' i i^ai*h.s"rlii -^^T'T^I f WKJ.! rtiJ.l.l.UN UNUtK AK l-.l.'l-t. /227 "r^ '•mi. „-,• ^c r "1,'ftF OS ^/1^£ \^'f The petitioner, above named, most respecffuliy begs to submit <,' ^3 HIGH COURT OF CHHATTISGARH AT BILASPUR Sinale Bench: Hon'ble Shri Justice Prashant Kumar Mishra Writ Petition No.5 of 2006 Petitioner Respondents versus Trust Shri Laxminarayan Maharaj "Kila Mandir Durg" Vasu Deo and others Present: Shri Malay Kumar Shrivastava, counsel for the petitioner. Shri Vinod Tekam, Panel Lawyer for the State/respondent No.3. None for respondents No.1 and 2 even in the second call. Writ Petition underArticle 227 ofthe Constitution oflndia ORAL ORDER rth (Passed on 27"' January, 201 1) Heard. 2. On perusal of the order-sheets of the previous dates, it would appear that the counsel appearing for respondents No.1 and 2 had sought time for filing return on several occasions yet no return has been filed. This Court is, therefore, proceeding to decide the writ petition ex parte. 3. In a suit for eviction preferred by the petitioner/plaintiff, one Piladas was arrayed as defendant No.1. The said Piladas died during pendency of the suit, therefore, the petitioner moved an application under Order 22 Rule 4(a) of the Code of Civil Procedure for deleting his name on the ground that the legal heirs of the said defendant is not known and in spite of best of efforts, the plaintiff is / not aware of the names of the tegal heirs. Learned trial Court, while 3& considering the said prayer for deletion, has held that the entire suit has abated on account of the plaintiffs failure to implead the legal heirs of defendarit No.1 Piladas. 4. • In the impugned order, learned trial Court has not discussed as to how the suit would abate as a whole. There is no discussion also as to the nature of suit, the status of the parties qua the subject matter of the suit etc. In the opinion of this Court, the plaintiff being the dominus litis should be allowed to prosecute the suit against the remaining defendants if one of the defendants has died. Even if it is a case of abatement as against the deceased defendant, a finding has to be recorded by the trial Court as to whether the suit abates as a whole or it abates only against the deceased defendant. 5. In view of the above, the impugned order is set aside. The plaintiff is permitted to delete the name of defendant No.1 Piladas from the array of parties in the suit. The order of abatement as against the deceased Piladas would remain intact and the suit shall proceed against the remaining defendants. 6. The instant writ petition is allowed. Sd/- P'-ashant Kumar Mishra Judge Gopal ^^^^%^^^^;;^^s^^;^^;^^[^fe^^^^i^^^'^^^^^^^^ S%:^l^%^I^Mi^@II^!@^ffi^^^^^^^^^^^^^^^^||^