Maulvi Issa Qureshi vs District Judge, Deoria & Ors

O R D E R Leave granted We have heard learned counsel on both sides. These two appeals by special leave arise against the orders of the High Court of Allahabad dated 15.11.1995 & 1.3.1395 made in Revision Petition no.16944/95 and in CMWP No.29890/91. The admitted facts are that Ram Nihore, said to be liviing, laid suit, impleading Mansari as a co- plaintiff, for perpetual injunction restraining the appellant from possession and enjoyment of the plaint schedule property. The suit came to be laid on April 25,1988. The suit was dismissed for default on May 27, 1988. An application under Order 9 Rule 4, C.P.C. was filed for restoration on May 30, 1988. The appellant filed objections stating that Ram Nihore had already died on September 4,1979. Therefore it was fraudulent suit laid on behalf of a dead person by the co-plaintiff. That application came to be dismissed on May 30,1988 Subsequently, the co-plaintiff filed an application for substitution of the son of the dead plaintiff on February 6,1990. The appellant raised objection that since the suit had already been dismissed, no substitution could have been made. Accordingly Civil Court dismissed the application on February 6,1990. The respondent carried the matter in revision to the District Judge. The District Judge by his order dated July 6,l991 allowed the application and directed substitution. When it came to be challenged before the High Court in W.P., the High Court dismissed the same.

The question therefore, is : whether the respondent is entitled to be substituted in a suit which is already dismissed and has became final? Though Ms. Sandhya Goswami, learned counsel for the respondents sought time again and again, for filing the counter-affidavit, no counter affidavit has been filed. From the narration of the facts, it is clear that when the suit had come to be filed on beha1f or a dead person professing to be alive and co =plaintiff was impleaded in the suits it would be obvious that the o- plaintiff played fraud upon the Court and misused judicial process. The question then is : whether the substitution of the son of the dead plaintiff in the suit would be permissible? It is axiomatic that the son of the deceased has no better independent right than what the original plaintiff himself had. After filing of the suit on behalf of a dead person and when the suit has already become final the question of substitution does not arise. Therefore the District Judge committed manifest error of law in directing substitution and the High Court was not right in declining to interfere with the order.

The appeals are accordingly allowed. No costs,