9911796707
TMI Blog2016 (1) TMI 1504X X X X Extracts X X X X X X X X Extracts X X X X ..... .2006. Thereafter, the respondent herein who is none other than the sister of the deceased plaintiff as well as the deceased first defendant/first revision petitioner filed application under Order 9 Rule 9 CPC to set aside the ex-parte dismissal of the suit and to restore the same and also an application under Order 1 Rule 10 r/w Order 22 Rule 5 CPC to implead herself as party to the proceeding. On perusal of the plaint it is seen that the cause of action has been mentioned as The cause of action for the suit arose on 27.01.1967 when the suit property was purchased and on 17.05.2004, 20.03.2005 the defendants made an attempt to trespass into the suit property . But according to the respondent/proposed party, she has purchased the property o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs dated 10.09.2009 made in I.A. No. 790 of 2006 and I.A. No. 791 of 2006 in O.S. No. 27 of 2005, wherein the application filed under Order 1 Rule 10 r/w Order 22 Rule 5 CPC to implead the subsequent purchaser as party to the proceeding and the application filed under Order 9 Rule 9 CPC to set aside the ex-parte dismissal of the suit and to restore the same came to be allowed. 3. The learned counsel appearing for the revision petitioners would submit that one Parijathammal as plaintiff has filed the suit in O.S. No. 27 of 2005 for bare injunction in respect of 4 items of the suit property. The said Parijathammal died on 09.07.2006 and thereafter, the suit was dismissed for default on 14.07.2006. While so, the respondent herein who has purc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent herein can very well step into the shoes of the deceased plaintiff. However, since the suit is only for bare injunction, the said option is not available to the respondent." 5. To substantiate his argument, the learned counsel for the revision petitioners relied upon the following decisions: "1. (1973) 1 Supreme Court Cases 688, Phul Rani v. Sh. Naubat Rai Ahluwalia 2. 2013 (3) CTC 356, Smt. Bhagwati v. Shri Kanshi Ram 3. 109 (2004) DLT 852, Asha Batra and Others v. Dharam Devi 4.CDJ 2013 SC 310, Ram Prakash Agarwal and Others v. Gopi Krishan (Dead through L.Rs.) and Others" 6. Resisting the same, the learned counsel for the respondent would submit that the respondent/plaintiff is none other than the sister o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led application under Order 9 Rule 9 CPC to set aside the ex-parte dismissal of the suit and to restore the same and also an application under Order 1 Rule 10 r/w Order 22 Rule 5 CPC to implead herself as party to the proceeding. On perusal of the plaint it is seen that the cause of action has been mentioned as "The cause of action for the suit arose on 27.01.1967 when the suit property was purchased and on 17.05.2004, 20.03.2005 the defendants made an attempt to trespass into the suit property". But according to the respondent/proposed party, she has purchased the property only on 26.04.2006 and so, as on the date of filing of the suit, there is no cause of action and she was not the person in possession. Further, if the suit is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suit was dismissed on a preliminary issue concerning the validity of the notices to quit and was remanded in appeal for trial on the merits. It is patent and would be altruism to say that the death of the plaintiff will not cause the ejectment proceedings to abate if the right to sue survives. That is the formula contained in Order 22 Rule 1 of the Code of Civil Procedure, a formula simple in its wording but not simple in its application. The "right to sue" as said succinctly in Saraj Chandra v. Nani Mihan means 'the right to bring a suit asserting a right to the same relief which the deceased plaintiff asserted at the time of his death". Thus contracts involving the exercise of special skill like a promise to paint a pi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 852, Asha Batra and Others v. Dharam Devi; CDJ 2013 SC 310, Ram Prakash Agarwal and Others v. Gopi Krishan (Dead through L.Rs.) and Others, it was held that the suit being simply for the grant of injunction, it would come to an end on the death of the defendant. But in the instant case it was a suit for bare injunction and when the suit was dismissed for default on the death of the plaintiff, the proposed party cannot step into the shoes of the deceased plaintiff and contest the suit. So, the above decisions are not relevant to the facts of the present case. 11. As discussed supra, the respondent/proposed party has no locus standi to file an application to restore the suit because the respondent herein has purchased only the 1st item of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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