ORAL JUDGMENT :- By this writ petition under Article 227 of the Constitution of India, the petitioners have taken exception to the order dated 108-1994, by which an application at Exhibit-86 filed by respondent No.1 under Order 22, Rule 3(1) and (2) of the Code of Civil Procedure (for short, "the CPC"), seeking dismissal of Regular Civil Suit No. 278 of 1981 as abated in its entirety, has been allowed. The petitioners are the original plaintiff Nos. 1 to 4 and 6, whereas the respondents are the original defendants, hereinafter referred to as "the petitioners" and "the respondents" respectively. Insofar as the original plaintiff No.5 Banubai Hariba Mohite is concerned, she would be referred to by her name.

2. The petitioners and Banubai Mohite instituted Regular Civil Suit No. 278 of 1981 for declaration, injunction and also for mandatory injunction seeking directions to the respondents to remove the obstruction in enjoyment of their right of way and use of the door, as shown in the map annexed to the plaint. They have claimed an easement of necessity against the respondents. The suit was filed on 19-8-1981 claiming the aforestated reliefs against all the respondents. During pendency of the suit, Banubai Mohite died on 30-12-1991. It appears that no immediate steps were taken by the petitioners for bringing her heirs and legal representatives on record. However, an application seeking to bring her legal representatives on record was filed on 6-1-1993 and it was rejected on the very same day. The order rejecting that application was challenged in Writ Petition No. 1207 of 1993 and the writ petition was dismissed vide order dated 23-61993. Thereafter, respondent No. 1 filed the application at Exhibit-86 under Order 22, Rule 3(1)(2) of Civil Procedure Code for dismissal of the suit in its entirety as abated, which came to be allowed by the impugned order.

3. It is against this backdrop the question that falls for my consideration is "whether the order, dismissing the suit in its entirety as abated, in the facts and circumstances of the present case, is sustainable in law and whether the petitioners are entitled to proceed with the suit against the respondents-defendants. In other words, looking to the reliefs claimed in the suit, whether after the death of Babubai Mohite - plaintiff No.5, the right of the petitioners - plaintiffs No. 1 to 4 and 6, survives even if her legal representatives are not brought on record and in their absence whether the suit can proceed against the respondents-defendants.

4. Mr. Bodke, learned counsel for the petitioners, at the outset, invited my attention to the provisions of Order 22, Rule 2 and submitted that looking to the nature of the reliefs in the suit the right to sue of the petitioners would survive even after the death of Banubai Mohite and they have every right to proceed with the suit further. He submitted that though the common suit was filed by all the five petitioners and Banubai Mohite, every one of them has an independent/separate right to claim the reliefs prayed for in the suit instituted by them. In other words, he submitted that though this is a case of common interest, it cannot be said that the rights of the parties are joint or indivisible. On the other hand, Mr. Salunkhe, learned counsel for the respondents, submitted that all the petitioners, being co-owners of the property in respect of which they sought the reliefs in the suit, it cannot be said that their rights and interest are separate. He further submitted that dismissal of the suit as abated against Banubai Mohite is also a decree and, therefore, if the petitioners are allowed to proceed with their suit and if the suit is decreed, there would be inconsistent decrees, which is not permissible in law. In support of his contentions, he placed reliance upon the following judgments of this Court: Annabai Devram Kini and ors. vs. Mithilal Daisangar Singh and ors, 2002(3) Mh.L.J. 507 = 2002 (8) U SOFT 56 and Mahendra C. Shah

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