A suit filed in a representative capacity does not abate upon the death of one of the plaintiffs, and the legal representatives are entitled to continue the suit in a representative capacity.

Amar Dutt, J. - This order will dispose of C.R. Nos. 2624 and 1951 of 1982 arising out of the same order passed by the District Judge, Rohtak on 10.4.1982.

2. Hardwari and Hukmi, who were Biswedars of village Baproda, tehsil Bahadurgarh, district Rohtak, had filed, on their own behalf and on behalf of other Biswedars, a suit for partition of the Shamlat land in the year 1978. Hukmi died on 14th of April, 1981, whereupon an application for bringing his legal representatives on record was filed on 9.9.1981. Since the application was filed beyond 90 days, the trial Court, on 18th of September, 1931 rejected the same and dismissed the suit as abated. Appeals were filed by Hardwari and the legal representatives of Hukmi against the order of abatement and the District Judge, Rohtak, dismissed both the appeals vide order dated 10th of April, 1982. Both Hardwari and legal representatives of Hukmi have challenged the aforesaid order by filing two separate revision petitions.

3. I have heard Shri H.S. Hooda, Sr. Advocate, on behalf of the petitioners and have carefully considered the arguments advanced by the learned counsel and perused the record.

4. The petitioners assail the view taken by the Courts below on the ground that while rejecting the application for bringing on record the legal representative, the Courts below have lost sight of the fact that the suit had been filed in representative capacity.

5. The legal position regarding abatement of suit filed in the representative capacity was settled by the Privy Council way back in Raja Anand Rao v. Ramdas Paduram and others, A.I.R. 1921 P.C. 123. This view has been cited with approval in Charan Singh and another v. Darshan Singh and others, A.I.R. 1975 S.C. 371, wherein, it was held that "since the suit had been filed in a representative capacity, it is clear that on the death of one of the plaintiffs it did not abate." Admittedly, the litigation in the present case was initiated at the behest of Hardwari and Hukmi, who while filing the suit as Biswedars, had sought permission to file the same in a representative capacity. There is no dispute that this permission had been granted. In view of this, the ratio in the aforecited judgments, would squarely cover the case of the petitioners and entitle Hardwari to continue the suit in a representative capacity. Since the suit would not abate, the application of the heirs of Hukmi, though belated, could not have been rejected because once they stepped into the shoes of their father on the opening of the succession, they would also be entitled to have their rights adjudicated.

6. For the reasons recorded above, the revision petitions are allowed and the orders passed by the Courts below are set aside.

Petitions allowed.