1986 Supreme(MP) 326

IN THE HIGH COURT OF MADHYA PRADESH
P.C. PATHAK, J.
Ramgopal - Appellant
Vs.
Nandkishore - Respondents
C.R. No. 494 of 1978 (I)
Decided On : 03-07-1986

Headnote:(1) Civil Procedure Code, 1908 – O. 22, R. 4 (3) and 9 (2) – applications for setting aside abatement and bring LRs on record pending – no order to strike out names of defendants can be passed.

       (2) Civil Procedure Code, 1908 – O. 1, R. 10 – application to strike out names of defendants – cannot be allowed when applications for setting aside abatement is pending.

       (3) Civil Procedure Code, 1908 – O. 22 – defendants dying – suit passes in state of suspended animation.

        Short Note

       1. This is a revision by defendants 2, 4, 5, 6 and 7 against an order dated 8 – 2 – 1978 passed by the IVth Additional District Judge, Indore, in Civil Suit No. 8 – A whereby he allowed the application made by the plaintiffs N.A. Nos. 1 and 2 to delete the names of defendant 8 to 61 in the suit. The defendants 1, 31 and 37 died during the pendency of the suit and yet no application to bring on record tae Legal Representatives was made within time. Later on, the application for substitution setting aside the abatement and condonation of delay, were made by the plaintiffs. During the pendency of these applications, the plaintiffs apprehending their rejections and dismissal of suit as abated, made another application for deleting the names of defendants 8 to 61, as stated above, which was allowed by the learned trial Court. Aggrieved by that order, the defendants filed the present revision.

       Held : The contention of the learned Counsel for the applicants is that on death of party – defendants, the suit passed in a state of suspended animation and, therefore, the trial Court had no jurisdiction to allow the application for deletion of names, as observed in Hiralal v. Ramshri, 1976 MPLJ S. No. 36 and Shitalchand v. Budhasingh, 1978 M.P.L.J. S. N. 30.

       2. After hearing learned counsel for the parties, I am of the opinion that the revision must be allowed. In Shitalchand's case Supra, relying on Balavamier v. Vasudevan and others (AIR 1929 Mad. 302) it was observed :

       "It is well settled that on death of a party to the suit or proceedings the lis passes into a state of suspense and no valid orders can be passed, on merits of the suit or proceedings. The orders that can be passed, can be only of procedural nature".

       3. In Sitalchand's case, during the pendency of application for bringing the legal representatives of one of the parties, an application for restoration of the suit, dismissed in default, was decided, which was challenged in revision. A Single bench of this Court, allowed the revision with the observations quoted above I am in respectful agreement with the aforesaid view. Here also, the application for deleting the names of defendants 8 to 61 was allowed, without finally disposing of the applications for substitutions of the legal representatives and ancillary applications which were dismissed as not pressed. It is obvious, that the learned trial Court had no jurisdiction to decide the application for deleting the names of the defendant Nos. 8 to 61, without first disposing of those applications as also the questions of abatement.

       4. The revision is allowed. The impugned order dated 8 – 2 – 1978 is hereby set aside. The case is sent back to the trial Court, for disposal of all the applications, with advertence to the foregoing observations. Revision allowed.