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2018 Supreme(UK) 8
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
SHARAD KUMAR SHARMA, J.
Ajay Bahadur Arora - Appellant
Versus
Smt. Rashmi Handa & others - Respondents
Writ Petition (M/S) No. 3360 of 2017
Decided on : 13-03-2018
Advocate Appeared:
For the Appellant :Mr. Neeraj Garg, Advocate
Headnote:
None
Fact of the Case:
The petitioner, defendant no.3 in a suit for eviction and possession, sought to quash the order dated 6.12.2017 passed by the III Additional District Judge, Dehradun, in Civil Revision No.163/2015 "Ajay Bahadur V/s Rashmi Handa", as well as part of the judgment/order dated 30.9.2015 passed by III Additional Civil Judge (S.D.) Dehradun in O.S. No. 414/1993 "Vipin Handa V/s Rao Rani Priya Kumari", so far it relates to refusing to accept the plea of defendant/petitioner for dismissing the suit having been abated as a whole and further also against an observation made in the impugned order to the effect that the cause of action as against the other defendants No. 2 and 3 i.e. the petitioner will survive and will not come to an end with the death of defendant No. 1, or due to the non substitution of heirs of defendant No. 1.
Finding of the Court:
The court held that the suit would not abate as a whole and would continue to survive against the surviving co-defendant, as the cause of action against the surviving defendant subsisted. The court further held that the effect of abatement of suit against defendant No. 1 would have no bearing on the claim of the petitioner/defendant no.3 because the effect of abatement of suit against defendant No. 1 would be that its rather the plaintiff who gives away the relief sought against defendant No. 1 due to non substitution of heirs after her death, there is no prejudice cause to petitioner, because his liability or any right was yet to be determined by learned trial Court after adjudication of suit on its merits, and also because by the time the death of defendant no.1 has chanced the right of the property already stood unequivocally transferred to the petitioner by the sale deed dated 23.2.1984 rather all rights in relation to the property vis-à-vis against defendant no.1 & 2 stood vanquished hence the theory of the paramount title holder which was sought to be argued by the counsel for the petitioner would not be applicable more particularly when he has candidly accepted the propriety of the sale deed which still validly holds good according to him.
Issues: Whether the suit should abate as a whole due to the death of one of the defendants and the failure to substitute their heirs.
Ratio Decidendi: The court held that the suit would not abate as a whole and would continue to survive against the surviving co-defendant, as the cause of action against the surviving defendant subsisted. The court further held that the effect of abatement of suit against defendant No. 1 would have no bearing on the claim of the petitioner/defendant no.3 because the effect of abatement of suit against defendant No. 1 would be that its rather the plaintiff who gives away the relief sought against defendant No. 1 due to non substitution of heirs after her death, there is no prejudice cause to petitioner, because his liability or any right was yet to be determined by learned trial Court after adjudication of suit on its merits, and also because by the time the death of defendant no.1 has chanced the right of the property already stood unequivocally transferred to the petitioner by the sale deed dated 23.2.1984 rather all rights in relation to the property vis-à-vis against defendant no.1 & 2 stood vanquished hence the theory of the paramount title holder which was sought to be argued by the counsel for the petitioner would not be applicable more particularly when he has candidly accepted the propriety of the sale deed which still validly holds good according to him.
Final Decision: The writ petition was dismissed in limine.
Sharad Kumar Sharma, J.
This is a defendant’s writ petition. The petitioner in this present writ petition has sought the relief for quashing the order dated 6.12.2017 as passed by the III Additional District Judge, Dehradun in Civil Revision No.163/2015 “Ajay Bahadur V/s Rashmi Handa”, as well as part of the judgment/order dated 30.9.2015 as passed by III Additional Civil Judge (S.D.) Dehradun in O.S. No. 414/1993 “Vipin Handa V/s Rao Rani Priya Kumari”, so far it relates to refusing to accept the plea of defendant/petitioner for dismissing the suit having being abated as a whole and further also against an observation made in the impugned order to the effect that the cause of action as against the other defendants No. 2 and 3 i.e. the petitioner will survive and will not come to an end with the death of defendant No. 1, or due to the non substitution of heirs of defendant No. 1.
2. The brief facts leading to filing of the present writ petition are that there happens to be a property called and more particularly described in the municipal records as Plot no.174, Block A, measuring 500 sq.yd situated at Rajendra Nagar Colony Kaulagarh Road, Dehradun Mauza Chaibagh, District Dehrdaun forming part of Khasra Plot no.20-M measuring 0.11 acres i.e. equivalent to 0.045 hectares. and the construction existing thereof, it is said to have been bounded, in the North by a 20 feet wide road, in South lies Plot no.173, in East Plot no.175 and in West by 20 feet vide road (herein after to be referred as “the property in dispute”)
3. The plaintiff, respondent nos.1 to 5 had instituted a Suit on 15.6.1993 before the Civil Judge, Dehradun, registered as Suit no.414/1993 “Vipin Handa and others V/s Smt. Rao Rani Priya Kumari and others” for the following relief:-
“A. That a decree for eviction and delivery of possession be passed in favour of the Plaintiffs and against the defendants evicting the defendants no. 3 and 4 from Plot No. 174, Block-A measuring 500 sq.yds. situated in Rajendra Nagar Colony, Mauza Chai Bagh, Kaulagarh Road, Dehradun forming part of Khasra plot No. 20(M) measuring 0.11 acres of 0.045 hect. Situated in Chai Bagh, Kaulagarh, Pargana Central Doon, Distt. Dehradun formerly known as Sirmaur Tea Estate, Dehradun (more fully described in the schedule given at the foot of this plaint)
B. That a decree for Mandatory Injunction be passed in favour of the Plaintiffs against and defendants directing them to remove all constructions standing on Plot No. 174 Block A measuring 500 sq. yds situated in Rajendra Nagar Colony, Mauza Chai Bagh, Kaulagarh Road, Dehradun, forming part of khasra plot No. 20 (M) measuring 0.11 acres or 0.045 hect. situated in Chai Bagh, Kaulagarh, Pargana Central Doon, Distt. Dehradun formerly also known as Sirmaur Tea Estate, Dehradun within such time as may be fixed by the learned court and on their failure to do so the plaintiffs be allowed to remove the same through the assistance of the learned court at the cost and expenses of the defendants.
C. That full costs of the suit and any other reliefs to which the plaintiffs are found entitled be also granted in their favour against the defendants.”
In the said suit the present petitioner has been impleaded as defendant no.3.
4. The suit thus filed on 15.6.1993 the plaintiff/respondent Nos. 1 to 5 had sought a decree of eviction and decree of possession to be passed in their favour and as against the respondents/defendant no.3 & 4 from the property in dispute, and further a decree of mandatory injunction against the defendants to remove all the construction existing on the property in dispute and in an event of failure to remove the said construction, the same may be removed through the assistance of learned court at the cost and expenses of the defendants.
5. In the suit thus filed the basic contention raised by the plaintiffs for the decree was that the property initially belonged to Lt. Colonel H.H. Maharaja Rajendra Prasad Bahadur who through his registere
