The main legal point established is that the abatement of a suit and the permissibility of impleading legal heirs as party defendants are governed by the provisions of Order 22 and Order 1 Rule 10 of the Code of Civil Procedure.

1. Petitioners-Plaintiffs application seeking impleadment of legal heirs of Ali Mohammad Teli, defendant No.2 in their suit claiming ownership rights over land measuring 3 kanals 17 marlas falling under survey No.258 Khewat No.22 Min situated at Village Batapora, Ganderbal, was dismissed by Munsiff Ganderbal vide order of March 07, 2006, on the ground that, suit against Ali Mohammad Teli, having abated in view of his death before the filing of the suit and the abatement having not been set-aside within the period of limitation prescribed therefor, impleadment of the legal heirs of Ali Mohammad Teli, as party defendants was impermissible.

2. Appearing for the revisionists, their learned counsel submits that the trial court has erred in rejecting petitioners application seeking impleadment of Ali Mohammad Telis legal representatives as party defendants by applying the provisions of Order 22 code of Civil Procedure which had absolutely no application to the petitioners application which warranted consideration under the provisions of Order 1 Rule 10 of the Code of Civil Procedure.

3. Per contra, referring to Ali Mohammad Khan versus Vijay Tulsi reported as AIR 1986, Jammu and Kashmir, 26, Mr. H. Furrahi submitted that in view of the law laid down by this court, learned Munsiffs order was perfectly justified and the petitioners were disentitled to seek impleadment of the legal heirs of Ali Mohammad Teli against whom their suit stood abated.

4. I have considered the submission of learned counsel for the parties and perused the order passed by the trial court.

The trial court has rejected petitioners application proceeding on the premise that petitioners suit against Ali Mohammad Teli, had abated because of his death before filing of the suit, and without getting the abatement set-aside within the prescribed period of limitation, the petitioners cannot avoid the affect of abatement, taking refuge under Order 1 Rule 10 of the Code of Civil Procedure.

Abatement of a lis is governed by the provisions of Order 22 of the Code of Civil Procedure.

Abatement kills the right to sue, resultantly terminating the proceedings without adjudication on merits. In such view of the matter, strict construction of the provisions of Order 22 is warranted.

Abatement can thus be said to have taken place only if it was so covered by the provisions of Order 22 of the Code of Civil Procedure.

5. The provisions of Order 22 of the Code, a plain reading whereof so demonstrates, contemplate abatement only in those cases where a plaintiff(s) or defendant(s) dies during the pendency of the proceedings. The provisions do not contemplate abatement in a case where a party to the lis was already dead before the institution of the proceedings.

6. The learned Munsiff was thus not right in rejecting petitioners application on the ground that suit against. Ali Mohammad Teli had abated because of his death before the suit.

7. The next question which falls for consideration is as to whether or not petitioners suit was nullity and in this view of the matter impleadment of legal heirs of Ali Mohammad Teli unwarranted?

8. The defendants barring defendant No.2 being alive, plaintiffs suit, cannot by any stretch of reasoning be said to be a suit against a dead person, hence nullity, rendering impleadment of the legal heirs of the deceased as party defendants impermissible.

9. The Judgment cited by Mr. Furrahi is not applicable to the facts of the present case because in that case the sole defendant had died before the filing of the suit.

10. The defect in plaintiffs suit in impleading Ali Mohammad Teli rather than his legal heirs as party-defendants could well be cured by the plaintiffs to seek adjudication of their rights in the immoveable property, the subject matter of the suit, in view of plaintiffs surviving joint cause of action against those who stood already impleaded as party defendants, and the legal heirs of Ali Mohammad Teli.

Order 1 Rule 10(2) of the Code takes care of such a sit

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