The right to sue survived upon the wife of the deceased plaintiff and other co-owners, and the court directed the respondents to bring the heirs and legal representatives of the deceased plaintiff on record by making an amendment in the array of parties for substantial justice between the parties.

Heard Sri K. K. Arora, Counsel for the petitioner and perused the record.

2. Dispute in this writ petition pertains to house No. D-208 Choti Market, Govindpuri, Modi Nagar, District Ghaziabad.

3. Brief facts culled out from the record are that the plaintiff-respondents filed S. C. C. Suit No. 9 of 1991 claiming themselves to be owners in possession of the property, in dispute, of which the defendant- petitioner is the tenant. The property, in dispute, was initially owned by one Sri Deenanath who died as a result of which, his sons and daughters became co-owners/landlord of the disputed property. A notice dated 22/24-5-1990 under Section 106 of the Transfer of Property Act was sent by the landlords to the defendant which was replied by him vide reply dated 30-5-1990 who also filed written statement in the suit on common grounds.

4. During the pendency of the suit, Sri Kaley, one of the plaintiffs (since deceased), plaintiff-respondent No. 3 died and survived by his wife Smt. Saroj Bakshi.

5. Sri K. K. Arora, Counsel for the petitioner submits that no substitution application was filed by the plaintiff-respondents to substitute heirs and legal representatives of Sri Kaley yet the aforesaid suit was heard and decreed vide judgment and decree dated 22-9-2004 holding that the petitioner-tenant had not committed any default in payment of rent. It further found that there was structural and material alteration/changes made by the defendant-petitioner as a result, he was liable to be evicted from the disputed property.

6. Aggrieved by the judgment and decree dated 22-9-2004, the petitioner-tenant preferred S. C. C Revision No. 158 of 2004. Another S. C. C. Revision No. 187 of 2004 was preferred by the landlords, plaintiff-respondents against the aforesaid judgment and decree.

7. Sri K. K. Arora, Counsel for the petitioner submits that the matter was heard for about three days. The effect of non-substitution of the heirs/legal representatives of the deceased Sri Kaley was brought to the notice of the revisional Court but vide its order dated 10-8-2006 the revisional Court with a view to circumvent the effect of non-substitution in suo motu exercised its powers, directed amendment/correction in the plaint for bringing the heirs of late Sri Kaley on record. Thereafter, application dated 17-8-2006 preferred by the petitioner for recall of the order dated 10-8-2006 which too was rejected by the revisional Court vide impugned order dated 5-10-2006.

8. It is against the aforesaid orders dated 10-8-2006 and 5-10-2006 that the petitioner has come up in this writ petition. It is admitted that suit was filed and decreed on common grounds raised by all plaintiffs commonly.

9. It is urged by Counsel for the petitioner that separate procedure has been provided in Code of Civil Procedure (for short code) for amendment under Order XXII Rule 3 of the Code of plaint and for substitution under Order VI Rule 17 of the Code subject to limitation. In case of application filed beyond prescribed period of limitation, the other party has a right to file objection and oppose the same and if no application is filed, the suit proceedings automatically stand abated under the Code.

10. It is settled law that when there are more than one plaintiff and only one of them dies, the suit shall not abate when right to sue survives to the other plaintiffs.

11. In the light of arguments advanced by Sri K. K. Arora, Counsel for the petitioner, provisions of Order VI Rule 17, Order XXII Rule 3 as well as other relevant provisions of law may be examined.

12. Order VI Rule 17 is regarding amendment of pleadings. It provides that the Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties provided that no application for amendment shall