IMPORTANT POINT
The right to sue survives against other defendants when one defendant passes away, and the court has the power to exempt the plaintiff from substituting the legal representatives of non-contesting defendants under Order 22 Rule 4(4) of the Civil Procedure Code.

JUDGMENT :

1. The suit for declaration and permanent injunction was filed by the petitioner against the defendants-respondents before the Court of Assistant Collector, Jaipur (hereinafter referred to as “the Trial Court”) but during the pendency of the said suit, one of the defendants i.e. defendant No. 12 Mst. Soni has expired in the year 1981. Hence under these circumstances, the petitioner submitted an application on 25.06.1983 before the Trial Court indicating there that after service of notice, neither the defendant No. 12 appeared nor any written statement was filed. It was also stated in the application that she was not having any legal representatives, hence under these circumstances, a request was made for deleting the name of the defendant No. 12-Mst. Soni from the array of cause title of the suit. The aforesaid application filed by the petitioner was decided by the Trial Court on 23.12.1983 and the fact was recorded that Mst. Soni expired and this fact came to the knowledge of the petitioner on 21.8.1982 while the application was submitted by him on 25.06.1983 and the learned trial Court was of the view that the application was submitted after a lapse of time, hence the suit was treated as abated vide impugned order dated 23.12.1983.

2. Aggrieved by the aforesaid order, the petitioner submitted an appeal before the Revenue Appellate Authority (for short, ‘RAA’), however, the same was dismissed vide judgment dated 12.10.1995. The petitioner unsuccessfully challenged the aforesaid order by way of filing the second appeal before the Board of Revenue (for short, “the Board”) but the same was also rejected vide order dated 28.07.2000. Aggrieved by all the three judgments passed by the Courts below, the petitioner has approached this Court by way of filing this petition under Article 226 of the Constitution of India.

3. Learned counsel for the petitioner submits that the order dated 23.12.1983 passed by the Trial Court is per se illegal and the same is not sustainable in the eye of law because after the death of the one of the defendants, the entire suit cannot be treated as abated as other defendants were there on record and right to sue was surviving. Counsel submits that the defendant No. 12 did not put in appearance before the Court inspite of service of summons and she did not submit any written statement, hence under these circumstances, the suit could not have been treated as abated to her extent or permission could have been granted for substitution of her legal representatives (for short, “LRs”). Counsel submits that since the said defendant died issueless and she was not having any legal representatives, hence under these circumstances, an application was submitted by the petitioner for deleting her name from the array of cause title of the suit filed by the petitioner. Counsel submits that going beyond the provisions contained under the Code of Civil Procedure, the entire suit has been treated as abated and the same has been rejected. Counsel submits that in view of the submissions made hereinabove, the impugned orders passed by the Courts below are not sustainable in the eye of law and the same are liable to the quashed and set aside. In support of his contention, he has placed reliance upon the judgment passed by this Court in the case of Girdhari Lal and Ors. Vs. Laxminarain, reported in 1988(1) RLR 324.

4. Per contra, learned counsel for the respondents opposed the arguments raised by counsel for the petitioner and submitted that the fact with regard to death of defendant No. 12 Mst. Soni was well within the knowledge of the petitioner but no application for substitution was submitted by him within the statutory period of limitation and time barred application was submitted by the petitioner after passing of the considerable time but without submitting an application for condonation of delay. Counsel submits that under these circumstances, the Court below has not committed any error in treating the suit as abat