The right to sue survives to the surviving plaintiffs if they could have filed the suit even without joining the deceased plaintiff.

Janak Raj Kotwal, J.

1. Question raised in this revision petition by the petitioners/defendants is whether the suit for eviction from two shops and recovery of the arrears of rent filed against them by four real brothers, has abated due to the death of one of them as his legal representatives were not brought on record.

2. Heard. I have perused the record including copies of the pleadings, which were produced at bar by respondents' counsel.

3. The suit for eviction and recovery of arrears of rent was filed by respondents and their fourth brother, Mohinder Kumar Goswami. Eviction of defendants has been sought on the ground of default in payment of rent. As per the plaint, plaintiffs' case, briefly and inter-alia is that the two shops were taken on rent by defendant No. 1 from them through plaintiff No. 1, who at a later stage stopped paying rent to the plaintiffs and handed over possession of one shop to defendant No. 2 and of the other to defendant No. 3.

4. Plaintiff No. 2, Mohinder Singh, died during the pendency of the suit. His legal representatives have not been made party to the suit after his death. The defendants, therefore, moved an application claiming that suit has abated as the right to sue does not survive to the remaining plaintiffs alone. Learned trial court, however, vide order dated 12.03.2010 held that suit does not abate taking the view that since all the plaintiffs including the deceased claim to be the joint owners of the two shops, the right to sue survives to the other plaintiffs. Feeling aggrieved, the defendants have impugned the order passed by the learned trial court in this revision petition.

5. Rules 1, 2 and 3 of Order 22 C.P.C. are relevant on the point and need to be read in juxtaposition. Rule 1 provides that the death of a plaintiff or defendant shall not cause the suit to abate ' if the right to sue survives'. Under Rule 2 inter-alia where in a suit there are more plaintiffs than one and one of them dies during the pendency of the suit but the 'right to sue' survives to the surviving plaintiff or plaintiffs the death will have no effect on the suit, which shall proceed at the instance of the remaining plaintiff or plaintiffs. Under Rule 3 if, however, in a similar situation the 'right to sue' does not survive to the surviving plaintiff or plaintiffs alone the court on an application made in this behalf shall cause the legal representatives of the deceased plaintiff impleaded as a party to the suit and proceed. Such application may be made by the surviving plaintiffs or the legal representatives of the deceased. If, however, no application for impleadment of legal representatives is made within the time prescribed by law the suit shall abate so far as the deceased plaintiff is concerned and such limited abatement shall have the effect of causing abatement of the entire suit as the right to sue does not survive to the surviving plaintiff or plaintiffs alone.

6. The primary question involved in this revision petition, therefore, would be whether after the death of plaintiff No. 2 the right to sue survives to the surviving plaintiffs or not. Suit will not abate and the trial court should proceed with the trial if the right to sue survives to the surviving plaintiffs. The suit, however, shall abate if the right to sue does not survive to the surviving plaintiffs alone as the legal representatives of the deceased have not been impleaded as party to the suit.

7. It is important to note that Rules 1, 2 & 3 of Order 22 CPC contemplate the survival of 'right to sue' to the surviving plaintiff or plaintiffs. The right to sue means the right of a person to bring a suit asserting a right to relief on accrual of a cause of action for filing the suit. The determining factor, therefore, is whether the suit was maintainable had it been filed by the surviving plaintiffs without joining the deceased plaintiff at the time of filing of the suit. The plaint in the suit filed by the plaintiffs on its plain readi