IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1348 of 2007 BHUNESHWAR THAKUR Versus KEDAR THAKUR & ORS ----------- 6 13.1.2009 Heard counsel for the parties. By an order dated 25.4.2000, Title Suit No. 245 of 1996 was held to have abated on account of non- substitution of defendant no.2 who is said to have died on 1.4.1997. This order dated 25.4.2000 thereafter was made subject matter of an appeal at the instance of the plaintiffs-opposite parties and the appellate court by an order dated 31.1.2006 had dismissed the appeal with an observation that the petitioner had a remedy only under Order XXII Rule 9 of the Code of Civil Procedure (in short C.P.C.). Thereafter, the plaintiffs-opposite parties had filed an application before the court below and by the impugned order dated 1.6.2007, the court below has set aside the abatement, recalled its order dated 25.4.2000 and in effect allowed the application of the plaintiffs-opposite parties under Order XXII Rule 9 of the C.P.C. Mr. K.N. Chaubey, learned counsel appearing on behalf of the petitioner submits that once an order was passed by the trial court holding that the suit had abated which findings got affirmed and confirmed in the 2 order of the appellate court dated 31.1.2006, it was no longer open for the trial court to take a contrary view and recall the order dated 25.4.2000 at the instance of the plaintiffs-opposite parties whose appeal against that very order dated 25.4.2000 had stood dismissed. Mr. Dhrub Narayan, learned senior counsel appearing on behalf of the opposite parties however would submit that a wrong advice given with regard to the filing of an appeal, as observed and adjudicated by the appellate court holding the remedy of the plaintiffs- opposite parties under Order XXII Rule 9 of the C.P.C. to available to them, infact will neither amount to approving the view taken by the court below in the order dated 25.4.2000. He would therefore, submit that the court below has committed no jurisdictional error in exercise of its power under Order XII Rule 9 of the C.P.C. There is no dispute on the proposition of law that remedy for setting aside the order of abatement lies under Order XXII Rule 9 of the C.P.C. and if the plaintiffs-opposite parties due to wrong advice had filed an appeal against the order dated 25.4.2000, they cannot be said to have acquiesced their right to avail the remedy under Order XXII Rule 9 of the C.P.C. To that extent, the interparte order of the appellate court also helps them because all that has been held therein is 3 that the appeal is not maintainable and the remedy in such cases is only under Order XXII Rule 9 of the C.P.C. The next question would be as to whether there is a justifiable reason in the impugned order for setting aside the abatement. It is not in dispute that the present suit came to be filed in view of certain observations made by this Court in a writ application. The issue in fact relates to the succession to the alienated property of one Most. Dhanwantra Kunwar. It is the case of the plaintiffs-opposite parties that after her death during the ceiling proceedings, they came to be the successors by way of being reversioners to the property along with the defendant no.1 namely Bhuneshwar Thakur, petitioner to this case. To that extent, the relief sought by the plaintiffs-opposite parties is that 4/5th of the share should be carved out and for remaining 1/5th a separate takhta should be made in favour of the defendant- petitioner. On the other hand, it is the case of the petitioner that he had acquired the entire property of the Dhanwantra Kunwar by a deed of gift and therefore, the right of all other persons i.e. the plaintiffs-opposite parties had been extinguished because such deed of gift executed and acted upon in the life time of Dhanwantra Kunwar itself had ruled out the possibility of its being succeeded by anyone including plaintiffs-opposite 4 parties. This being an essentially a question of fact arising out of the property of Dhanwantra Kunwar could have been adjudicated in the suit and the death of defendant no.2 on 1.4.1997 leaving behind his daughters in no way could have altogether extinguished the claim of the remaining plaintiffs because all that was sought to be done is that 4/5th share was to be carved out for the plaintiffs as also defendant no.2, leaving 1/5th for the defendant-petitioner. In a suit of such nature basically arising out of the claim of partition, there would be no question of abatement of suit and the reliance placed by the counsel for the petitioner on the judgment of the Apex Court in the case of Municipal Council, Mandsaur Vs. Fakirchand & Anr. Reported in AIR 1997 SC 1251 seems to be rather misplaced. In that suit where the Municipality had failed to bring on record legal representatives of one of the co-owners, at the stage of second appeal, the Apex Court had held that the disputed property was undivided property of the said three joint owners who had inherited the father’s interest after his death and therefore, non substitution of one of the three owners by the Municipality at the appellate stage, the suit decreed in their favour would not have been disturbed and the appeal was held to have been abated. That however is not the position here 5 in the present case inasmuch as a situation which has emerged out of an order passed in a writ application by this Court, leading to an adjudication as to whether Dhanwantra Kunwar had gifted the entire property in favour of the defendant-petitioner or the property in question had been inherited by way of succession exercising the right of reversioner on death of Dhanwantra Kunwar by the plaintiffs as also defendants to the suit ? To that extent, the interest of the plaintiffs and defendant no.2 is absolutely unseverable and in fact, even if the 4/5th share is carved out, the defendant no.2 cannot have any adverse interest as against the plaintiffs-opposite parties so as to give benefit of abatement of the suit in favour of the defendant no.1. It is this aspect of the matter which has basically appealed this Court inasmuch as this Court is of the view that by setting aside the impugned order, it will give rise to the order dated 25.4.2000 holding the suit to have abated on account of non-substitution of one of the parties being beneficiaries to the partition suit. If the concept of every party in a partition suit to be a plaintiff is to be carried to its logical conclusion, it must be also therefore, held that on mere death of defendant no.2, the suit could not have abated and at best their interest could have been covered and confined 6 to 4/5th of the whole share as claimed in the plaint by the other plaintiffs. Thus, in order to put the records straight, the court below was required to allow the substitution of defendant no.2 and therefore, once it had passed the impugned order after condoning the delay by allowing the application under Section 5 of the Limitation Act, it had also to ensure that the plaintiffs-opposite parties had supplied the name of the daughters and other heirs of defendant no.2. Counsel for the plaintiffs-opposite parties therefore, undertakes that within a period of one month from the date of receipt/production of a copy of this order, they will substitute the name of the heirs and legal representatives of the defendant no.2 in the court below so that the suit does not suffer from any formal defect of parties. This recourse to be now taken by the counsel for the plaintiffs-opposite parties, however is demonstrative of their own negligence and laches and in fact from 1.4.1997 till for the ten years, it is they who have put the defendant-petitioner to all sort of discomfort by coercing them to contest the litigation. Thus, if such a belated prayer of the plaintiffs-opposite parties was to be allowed by the court below, a view which is being affirmed by this Court by dismissing the civil revision application, the plaintiffs-opposite parties 7 cannot escape from the liability of paying cost which is quantified at the sum of Rs. 5,000/- to be paid by the plaintiffs-opposite parties to the petitioner within a period of one month from the date of receipt of the copy of this order. With the aforementioned observation and direction, this application is dismissed. Rsh (Mihir Kumar Jha, J.)