High Court of Judicature at Allahabad
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Take Chand v. Smt. Dayawati Devi And Another - WRIT - C No. 29641 of 2006  RD-AH 10391 (25 May 2006)
Hon'ble Umeshwar Pandey, J.
Heard learned counsel for the parties.
The defendant Nos. 1 and 4 are said to have died after filing of the appeal in which they were the appellants. Substitution of those appellants has also been incorporated in the memo of appeal. Subsequent thereto the respondents-plaintiffs moved the appellate court for such substitution/recording the names of the heirs in the plaint also. That application has been allowed by the impugned order.
Learned counsel for the petitioners contends that the defendant No. 3 had also died way back in the year 2002 but even after his death no substitution was recorded by the respondents-plaintiffs in the plaint and let the decree in the suit pass. The defendant No. 3 was not made a party as an appellant or as a respondent in the appeal as he had already died by the time the appeal was filed. But the suit as regards the defendant No. 3 had definitely abated and the decree so passed therein, is no decree in the eye of law.
Their suit is for grant of relief of permanent injunction against each of the defendants. Ever since the death of respondent No. 3, plaintiff did not have any cause of action against his heirs. The occasion did not arise for his substitution and the explanation so given by the respondents' counsel appears to be wholly justifiable. Even if it is treated that the suit has abated, it would be deemed to have abated only in respect of the heirs of the deceased defendant No. 3 and would not be deemed to have abated as a whole. Therefore, in such circumstances, if the court below has permitted the amendment by way of recording names of the heirs of deceased-respondent No. 3 in the plaint, the said order does not have any error and is not liable for interference in writ jurisdiction of this court.
The petition having no force is hereby dismissed.
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