The court has the power to grant a temporary injunction even after a suit has abated, and in exceptional cases, applications for being brought on record as a legal representative and for a temporary injunction should be decided simultaneously.

Deepak Gupta, J.

The following interesting question of law arises for determination in this petition:

Whether once a suit has abated, a Court is powerless to issue an injunction under Order 39 Rules 1 & 2 of the Code of Civil Procedure?

2. The facts necessary for decision of this case are that deceased Kishan Chand filed a suit, in January 2006, against Jyoti Parkash (the present petitioner), hereinafter referred to as the defendant. The suit was filed for declaration that the plaintiff is owner in possession of the land. During the pendency of the suit Kishan Chand died on 4th October, 2008. Thereafter, his son Kamal Kant filed an application under Order 39 Rules 1 & 2 of the Code of Civil Procedure (for short ‘the Code’), praying that the defendant be restrained from raising any construction over the suit land. The defendant was proceeded ex-parte and an order was passed on 7th November, 2009, whereby he was directed to maintain status quo qua the suit land during the pendency of the suit. It appears that Kamal Kant had also filed an application under Order 22 Rules 3 & 9 of the Code for setting aside abatement and for bringing him and others on record as the legal representatives of Kishan Chand but this application had not been decided till the order of status quo was passed.

3. Thereafter, defendant Jyoti Parkash moved an application under Order 39 Rule 4 of the Code praying that the order of status quo be vacated since the same had been obtained by misstating the facts. It was also pleaded that the defendant had wrongly been proceeded ex-parte. However, the main ground raised was that since the suit had abated and the application for abatement had not been decided, there was no suit pending and as such no order could have been passed under Order 39 Rules 1 & 2 of the Code.

4. The learned trial Court dismissed the application. Appeal was filed by Jyoti Parkash before the learned Presiding Officer, Fast Track Court, Mandi, who dismissed the same. Hence, the present petition under Article 227 of the Constitution of India.

5. I have heard Mr. Subhash Sharma, learned counsel for the defendant-petitioner and Mr. G.R. Palsara, learned counsel for the respondent-legal heirs of the plaintiff.

6. To understand the rival contentions of the parties and the issue in hand, it would be pertinent to refer to Order 22 of the Code, which deals with death, marriage and insolvency of parties. Where there are more than one plaintiff, the suit shall abate only qua the deceased plaintiff, though this may result in the suit abating in entirety also in some circumstances. Where, however, there is only one plaintiff, the suit as a whole abates. In the present case, there is only one plaintiff and the application to bring on record the legal representatives was not filed within time and, therefore, the suit stood abated. Reference may be made to Order 22 of the Code. Sub Rule (2) of Rule 3 of Order 22 of the Code reads as follows:

“(2) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff.”

7. It is apparent from a reading of Order 22, sub-rule (2) of Rule 3 of the Code that where there is only one plaintiff and application contemplated under sub-rule (1) is not filed, within the period of limitation, the suit would abate as far as the deceased plaintiff is concerned. Since in the present case there is only one plaintiff, the suit will abate as a whole. There can be no quarrel with this proposition of law. The suit in the present case stood abated and, therefore, Kamal Kant and other legal representatives filed an application that abatement be set aside, delay in filing the application be condoned and the legal representatives be brought on record.

8.