Full Judgment Text
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PETITIONER:
MAULVI ISSA QURESHI
Vs.
RESPONDENT:
DISTRICT JUDGE, DEORIA & ORS.
DATE OF JUDGMENT: 16/08/1996
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
G.B. PATTANAIK (J)
CITATION:
JT 1996 (8) 175
ACT:
HEADNOTE:
JUDGMENT:
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
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=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,