Maulvi
Issa Qureshi Vs. District Judge, Deoria & Ors [1996] INSC 960 (16 August 1996)
Ramaswamy,
K. Ramaswamy, K.G.B. Pattanaik (J)
CITATION:
JT 1996 (8) 175
ACT:
HEAD NOTE:
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.
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