The legal point established is that a petition under Order XXII Rule 9 of the CPC for setting aside the abatement and dismissal of the suit is maintainable.

Heard learned counsel for the petitioners.

2. Brief facts of the instant case are being referred to hereunder in order to deal with the question raised by the writ petitioners while seeking quashing of the order dated 23.12.2013 passed by the learned Civil Judge-II, Sr. Division, Hazaribag in Misc. Case No. 04 of 2009, Annexure-3 whereby the petition filed by the opposite parties/petitioners herein on the maintainability of the Miscellaneous Case filed under Order XXII Rule 9 of the Code of Civil Procedure has been rejected.

3. Plaintiffs filed Title Suit No. 128 of 1981 before Munsif, Hazaribag seeking a declaration that decree passed in Title Suit No. 07 of 1976 by learned Munsif, Hazaribag on 11.08.1977 is null and void and fit to be set aside; for grant of permanent injunction restraining the defendant nos. 1, 2 and 7 from proceeding with the Execution Case No. 21 of 1981 pending in the Court of Munsif, Hazaribag and further to order that defendant nos. 1, 2 and 7 to be evicted from the suit premises; plaintiffs be put in khas possession of the same. After filing of the written statement vide order dated 16.01.2009 (Annexure-4 to the supplementary affidavit of the petitioner), the suit was dismissed as abated on the following grounds:-

“Perused the case record. I find that on 15.02.06, plaintiff had filed a petition for deleting the name of plaintiff Rupa Kumari and defendant Mohini Devi from the cause title of the plaint. On 14.5.07, a rejoinder was filed by the defendants against this petition of the plaintiff and in the para 3 of the rejoinder it was averred that defendant No. 7 has died 5 years ago within the knowledge of original plaintiff who had attended his funeral. I find that copy of this petition was also served to the learned counsel for the plaintiff. Even assuming that plaintiffs had no knowledge of the death of the defendant No. 7, it can be inferred that on 14.5.07, plaintiffs came to know about the death of defendant No. 7. In this situation plaintiff was bound to either delete the name of the deceased defendant or substitute the names of his legal heirs after deleting his name within 90 days from the date of knowledge i.e. 14.5.07. But I find that on 12.2.08, petition for deleting the name of the defendant No. 7 from the cause title of the plaint was filed without any petition seeking condonation of delay. So far as this argument of the learned counsel of the plaintiff is concerned that defendant No. 7 was neither necessary nor proper party of the suit and defendant No. 1 and 2 has regained the possession of one room sublet to deceased defendant is concerned, I find that relief of eviction has also been sought against defendant No. 7 vide relief B as mentioned in the plaint and this defendant No. 7 has also filed written statement. Further I fail to understand when this defendant No. 7 was not necessary party and he was ousted from the suit premises vide execution of decree passed in T. S. No. 7/76, why the plaintiff did not take step to delete the name of defendant No. 7 earlier. Moreover, there is no document on the record to show that defendant No. 7 is not residing in the suit premises and has been evicted from the same. I further find that plaintiff has not filed any petition under Order VI, Rule 17 of the C. P. C. to change the relief 'B' sought by him in the plaint because in the relief 'B', relief of eviction has been sought against defendant No. 1, 2 and 7. From the perusal of the plaint, it does not specify in which part of the suit premises defendant No. 7 was residing. Relief against defendant No. 1, 2 and 7 cannot be separated and isolated.

In the aforesaid circumstances, I am of the definite opinion that defendant No. 7 was necessary party in the suit and since after his death, no step for substitution was taken by the plaintiffs within stipulated period, the suit has abated. As such the instant suit is dismissed as abated.”

4. In the case of Perumon Bhagvathy Devaswom, Perinadu Village Vs