The main legal point established in the judgment is that the suit against the surviving defendant also stood abated as the suit had already abated against the deceased defendants, and the claim of the plaintiffs against the defendants was joint and not independent.

RAJIV SAHAI ENDLAW, J.

1. This petition under Article 227 of the Constitution of India impugns the order [dated 9th September, 2011 in Suit No. 703/2002 of the Court of Civil Judge (West)-III, Tis Hazari Courts, Delhi] allowing the application of the respondent no. 1/defendant and holding, that dismissal of the applications of the petitioners/plaintiffs for substitution of legal representatives of the deceased plaintiff Ishwar Singh and defendant No. 2 Sh. Dhare and resultant abatement of the suit qua/against them, had also resulted in abatement of the suit against the respondent no. 1/defendant and resultantly dismissing the suit.

2. The petition was entertained and notice thereof issued.

3. The petitioner no. 3/plaintiff Kartar Singh died during the pendency of this petition and vide order dated 30th November, 2016 his legal heir was substituted in his place. The respondent no. 7 Shakuntala also died during the pendency of this petition and the applications filed for substitution of her legal representative were dismissed on 30th November, 2016 recording that she was only a proforma respondent and no relief was claimed against her. The order dated 30th November, 2016 also records that service of the notice of the petition was complete.

4. The counsels have been heard.

5. The suit from which this petition arises was instituted in April, 1991 seeking (i) declaration to the effect that the compromise dated 25th February, 1991 entered into between the defendant no. 1 and defendants no. 2 to 4 in the suit and the consequent order dated 9th May, 1991 of the Court of Smt. Aruna Suresh, Additional Senior Sub Judge, Delhi in three appeals titled (a) Dhare vs. Kehar Singh, (b) Pritam Singh vs. Kehar Singh and (c) Mehtab Singh vs. Kehar Singh, filed by the defendants no. 2 to 4 in the suit against the defendant no. 1 were all procured malafidedly, dishonestly, collusively, fraudulently and were illegal, void and without jurisdiction and not binding on the plaintiffs and did not affect the rights, title and interest of the plaintiffs as successors in interest of one Smt. Risalo in the land detailed in para no. 24 of the plaint and (ii) a decree of permanent injunction restraining the defendants from interfering with the possession of the plaintiffs of the said land and from transferring the land to anyone else.

6. It is not in dispute that during the pendency of the suit (i) defendant no. 2 Dhare died on 6th December, 1997 and the application belatedly filed for substitution of his legal representatives was dismissed on 30th March, 2011; (ii) the defendant no. 1 also died; (iii) the defendant no. 3 also died and the application belatedly filed for substitution of his legal representative was also dismissed and (iv) the plaintiff no. 1 Ishwar Singh also died and the application for substitution of his legal representatives was also dismissed on 30th March, 2011.

7. The sole surviving defendant Mehtab Singh, in the circumstances, moved the application contending that with the abatement of the suit qua defendants whose heirs had not been brought on record and qua one of the plaintiffs whose heirs had also not been brought on record, the suit against him also stood abated and which application has, vide the impugned order, been allowed by the learned Civil Judge.

8. The learned Civil Judge, in the impugned order, has recorded (i) that it was the contention of the defendant/applicant Mehtab Singh that if the suit was permitted to continue against him, the same will lead to passing of conflicting decrees not permissible in law and (ii) that it was the contention of the counsel for the surviving plaintiffs that they were the lawful owner of the property and there would be no conflicting decrees.

9. The learned Civil Judge, in the impugned order, has reasoned (i) that the claim of the plaintiffs against the defendants was joint, composite and not independent; (ii) that the relief of permanent injunction was consequential to the relief of decla