The alternative prayer for possession in a civil suit can impact the survival of the suit after the death of the sole defendant.

JUDGMENT

Ajay Mohan Goel, J. - By way of this petition filed under Section 115 of the Code of Civil Procedure, the petitioner has challenged order dated 18.01.2020, passed by the Court of learned Civil Judge, Palampur, District Kangra, H.P. in a Miscellaneous Application filed under Order 22, Rule 4 of the Code of Civil Procedure in Civil Suit No. 75/2013, titled as Kanwar Bhan Vs. Ravan Ram, which stood disposed of by the learned Court below in the following terms:

"Today the case is listed for orders on application filed under Order 22 Rule 4 CPC. It is submitted that defendant Ravan Ram has expired. The present case is regarding permanent prohibitory and mandatory injunction. There is only one defendant and he had expired, therefore the right to sue does not survive in favour of LRs. of deceased Ravan Ram, as the person act of the person came to an end with his death. As the only defendant has expired and there is no other person against whom suit can be proceeded with, accordingly, the suit alongwith application under Order 22 Rule 4 CPC is dismissed. File after its due completion be consigned to record room."

2. When the case was listed on 26.02.2021, none has put in appearance on behalf of the respondents and accordingly, they were ordered to be proceeded against ex parte. Today, Mr. Vinay Sharma, learned counsel has put in appearance on behalf of the respondents and on his request, order dated 26.02.2021, is recalled and the respondents are permitted to join the proceedings.

3. Learned Senior Counsel for the petitioner has argued that the impugned order is not sustainable in the eyes of law, as learned Trial Court erred in not appreciating that the suit filed by the plaintiff was not only for decree of permanent prohibitory and mandatory injunction, but also with an alternative prayer for possession in case the defendant was found to be in possession of the suit land or any part thereof. On these bases, learned Senior Counsel submits that the findings returned by the learned Trial Court that right to sue did not survive after the death of the sole defendant, as the suit was filed only for permanent prohibitory inunction and mandatory injunction, are not sustainable in law, as the suit did survive in view of the alternative prayer which was made by the plaintiff in the suit. Accordingly, he prayed that this petition be allowed and the impugned order be set aside.

4. On the other hand, learned counsel representing the respondents has argued that there is no infirmity in the impugned order and the learned Trial Court has rightly dismissed the application filed under Order 22, Rule 4 of the Code of Civil Procedure, as the right to sue did not survive after the death of sole defendant.

5. Having heard learned counsel for the parties and perused the impugned order as well as copy of the plaint, which has now been placed on record, this Court is of the view that there is merit in the contention of learned Senior Counsel for the petitioner that the factum of the suit having been filed with an alternative prayer for possession, has not been taken into consideration by the learned Trial Court while dismissing the application filed under Order 22, Rule 4 of the Code of Civil Procedure. This Court is not expressing any view as to what would be the fate of the application filed under Order 22, Rule 4 of the Code of Civil Procedure, in view of the alternative prayer made in the plaint, however, the application undoubtedly has to be adjudicated, one way or the other, by taking into consideration all the prayers made in the plaint.

6. Accordingly, this petition is allowed by setting aside impugned order, dated 18.01.2020, passed by the Court of learned Civil Judge, Palampur, District Kangra, H.P. in a Miscellaneous Application filed under Order 22, Rule 4 of the Code of Civil Procedure in Civil Suit No. 75/2013, titled as Kanwar Bhan Vs. Ravan Ram, with direction that application filed under Order 22, Rule 4 of the Code of Civil Procedure sh