In a suit for injunction simpliciter, if the right to sue survives against the remaining defendants, there is no need to bring the legal representatives of the deceased defendants on record.

Headnote:
Abatement of Suit - Civil Procedure Code, Order 22, Rule 1, Rule 2, Rule 4 - The court relied on Order 22, Rule 1 of the Civil Procedure Code, which states that the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives. Rule 2 provides that if there are more plaintiffs or defendants than one, and any of them dies, and the right to sue survives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the suit shall proceed at the instance of the surviving party. Rule 4 provides that where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, the court shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit. If no application is made within the time limited by law, the suit shall abate as against the deceased defendant.
Fact of the Case:
The appellant filed a suit for permanent injunction against 26 defendants. During the pendency of the suit, the appellant came to know about the death of one of the defendants. The appellant filed an application to bring the legal representatives of the deceased defendant on record, but the trial court rejected the application and declared the suit abated against all the defendants. The appellant appealed against this decision.
Finding of the Court:
The court held that in a suit for injunction simpliciter, if the right to sue survives against the remaining defendants, there is no need to bring the legal representatives of the deceased defendants on record. The court relied on Order 22, Rule 1 of the Civil Procedure Code, which states that the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives. The court also referred to a precedent where it was held that in a suit for permanent injunction, the right to sue survives even if one of the defendants dies and his legal representatives are not brought on record.
Ratio Decidendi: The court held that in a suit for injunction simpliciter, if the right to sue survives against the remaining defendants, there is no need to bring the legal representatives of the deceased defendants on record. The suit can proceed against the surviving defendants.
Result: The court quashed the order of the trial court and restored the suit to the file of the trial court with a direction to proceed as per the law. The court also allowed the application to delete the names of the deceased defendants from the cause-title.

JUDGMENT - Dr. Da SILVA, J.:---The short point for my determination in this appeal is whether in a suit for injunction simpliciter the same abates when during the pendency of the suit one of the defendants expires and his legal representatives are not brought on record in the meantime.

2. The undisputed fact is that the appellant is the original plaintiff who has filed the suit against 26 defendants for permanent injunction simpliciter in the month of July, 1991. The suit was instituted in the Court of the Civil Judge, Senior Division, Panaji under No. 89/91/A. The cause of action for filing of the suit is that the defendants/now respondents had interfered in the appellants property situated at Daman which belongs to him.

3. It is the case of the appellant that he came to know about the death of one of the defendants being defendant No. 6, occurred somewhere in the year 1984 only later on in the year 1988. Therefore as a matter of abundant caution he moved an application before the trial Court to bring the legal representatives of the deceased defendant on record and for setting aside the abatement of the suit, if any. This application was made by the appellant on 5-10-1988 and in the same application he prayed also for condonation of delay in filing the application although no separate application nor any affidavit was filed along with it to condone the delay.

4. In reply to this application the remaining defendants brought to the notice of the trial Court that besides the defendant No. 6 one more defendant, being defendant No. 4, had also expired during the pendency of the suit many years ago and that no application was moved by the appellant to bring his legal representatives on record. The defendants therefore opposed to the appellants application and prayed that the suit be declared as abated against all the defendants.

5. The learned trial Judge by the impugned order dated 25-10-1990 rejected the appellants s application to bring the legal representatives of defendant No. 6 on record and dismissed the suit in toto by declaring it abated on the ground that the legal representatives of the deceased defendants Nos. 4 and 6 had not been brought on record within the prescribed time.

6. Shri Usgaonkar, learned counsel appearing for the appellant, has made it clear at the very outset that he is not going to touch on the merits of the appellants application moved before the trial Court to bring on record the legal representatives of the deceased defendant No. 6. According to him it was sufficient for the appellant to challenge the order of the learned trial Judge on the ground that in law there could be no abatement in toto of the suit filed by him in the special facts and circumstances of this case. The learned counsel urged that here was a case of a suit for injunction simpliciter and no declaration was sought for by the appellant/. It was contended that the appellant in view of the interference or encroachment of the defendants in his property could have perfectly filed separate suits against each of the 26 defendants for injunction. The learned counsel submitted that in case separate suits had been filed by the appellant and in any of them the defendant had expired without the appellant having brought his legal representatives on record within time then in that case only the concerned suit would have abated while the remaining suits could have proceeded. Therefore, according to the learned counsel, there was no reasonable justification for the learned trial Judge to declare as abated the whole suit against the defendants only because the appellant has failed to bring the legal representatives of one of the two defendants who happened to expire during the pendency of the suit.

7. It was contended by the learned counsel that a question could therefore have arisen as to why the appellant had filed only one suit against all the defendants in this case. The learned counsel invited my attention to the provisions of Order 1,

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