ORDER H.N. Seth, J.
1. By this application in revision under Section 115 of the Code of Civil Procedure the defendants claim that the order dated 30-11-1979, passed by the Munsif, Jaunpur refusing to declare that the suit giving rise to this revision has abated, be set aside.
2. Babu Nandan Singh filed a suit against Udit Singh, Girja Shunker Singh, Ganga Pd. Singh, Sankatha Singh and Ravindra Prasad Singh for a mandatory injunction directing them to demolish a wall marked by letters Ta-tha, and ta-ja shown in the plaint map.
3. During the pendency of the suit, defendant Udit Singh died in the year 1970, The heirs of the plaintiff Babu Nandan Singh, who too had died during the pendency of the suit, made an application, No. 103 Ka, in the year, 1977 stating that Udit Singh was dead and that his heirs and legal representatives were already on the record and prayed that a note be made accordingly. The defendants claim that Udit Singh had, apart from his sons who are defendants Nos. 3 to 5 left his widow and daughters also as his legal representatives. As the plaintiffs did not take steps to bring their names on record, the suit had abated and prayed that necessary declaration to that affect may be made. They also urged that in the circumstances, the application, paper No. 103 Ka, deserves to be rejected.
4. After hearing counsel for the parries, the trial court observed that the record showed that the names of the heirs of Ganga Singh had been brought on the record long time back. In this view, no question of abatement of the suit arose. In the result, it allowed the prayer made in application, paper No. 103 Ka and rejected the defendants' request for declaring the suit to have abated. Being aggrieved, the defendants have approached this Court for relief under Section 115 of the Code of Civil Procedure.
5. The order passed by the learned Munsif discloses that he has passed the order under some misapprehension of facts. In the first place the controversy between the parties was about the effect of death of Udit Singh and not about the death of Ganga Singh. Further the case of the plaintiffs was not that the names of the heirs either of Udit Singh or those of Ganga Singh had been brought on the record. His case was that the heirs of deceased Udit Singh were already on record as defendants Nos. 3 to 5. Be that as it may, it is not disputed that the plaintiffs did not move any application for bringing the names of the legal representatives of Udit Singh on the record. The only controversy is as to whether in the absence of any such application, the suit against Udit Singh abates and if so what is the effect of such abatement on the entire suit.
6. Copy of the plaint has been placed before me and its perusal shows that according to the plaintiffs the defendant i.e. Udit Singh, his three sons (defendants Nos. 3 to 5) and one Girja Shanker Singh had constructed the disputed walls on a piece of land which belorged to him. The plaintiff, accordingly, prayed that a mandatory injunction be granted directing the defendants to demolish the said wall. It is clear that the right of the plaintiff to claim relief in respect of the said wall did not come to an end with the death of Udit Singh. He could, after the death of Udit Singh, claim that all his heirs and legal representatives should by a mandatory injunction be required to demolish the wall constructed by Udit Singh. It was thus a case where after the death of Udit Singh, the right to continue the suit survived but then it did not survive against the surviving defendants, three of whom happened to be the sons of Udit Singh, alone. According to Order 22, Rule 4 C.P.C. where one of the two or more defendants dies and the right to sue does not survive against the surviving defendants alone, the plaintiff has to move an application for getting the names of his heirs and legal representative on record. The Rule further lays down that if no such application is made within the period of limitation prescribed therefor, the suit shall abate as against the deceased-defendant. As in this case no such application for substitution has been made, the suit has undoubtedly abated against Udit Singh,
7. Learned counsel for the plaintiffs relied upon certain decisions in which it has been held that whenever a person, dies living behind a number of heirs and an application is bona fide made to bring on record the names of some of his heirs and legal representative, there would be no abatement. He contended that as in this case the opposite parties bona fide believed that the three sons of Udit Singh whose names were already there on the record, it should, on the basis of principle underlying the decisions cited by him, be held that there has been no abatement of suit as against Udit Singh.
8. I am unable to accept this submission. Under Order 22, Rule 4 of the Code of Civil Procedure, a suit abates against the deceased defendant if no application to bring on record the names of the heirs and legal representative of the deceased is filed within the period of limitation prescribed therefor. In all such cases where an application for bringing on record the names of the heirs and legal representative of the deceased, is filed, even though it is not for bringing legal representatives on the record, an application under Order 22, Rule 4 of the Code of Civil Procedure has undoubtedly been moved and no question of abatement of the suit arises. The heirs who are left out can, if necessary be impleaded as parties to the suit. Abatement of suit under Order 22, Rule 4, C.P.C. is not prevented merely because the names of some of heirs or legal representatives of the deceased are already there on the record. The abatement takes place because the right to sue does not survive against the surviving defendants alone even if some of them may also happen to be some of the heirs and legal representative of the deceased. In case where all the legal representatives of a deceased are on record, and it is shown that right to sue survives, it would survive against the surviving defendants and there would, not be any necessity to file a substitution application. However, such is not the case where only some of the legal representatives of the deceased are on record. In such a case, the right to sue would not survive against the surviving defendants alone, and the suit would as provided under Order 22, Rule 4, C.P.C. abate against the defendant. Since only some of the legal representatives of Udit Singh were on record and admittedly no application for bringing on record the names of his heirs and legal representative has been moved within the period of limitation prescribed therefor the present suit has abated against Udit Singh. In the case before me, if no injunction is granted against the heirs of Udit Singh whose names have not been brought on the record, directing them to demolish the wall and those heirs are entitled to maintain the same, it will not be possible to ask the other defendants to demolish the same so as to affect the interest of Udit Singh's heirs, who have not been made parties to the suit, behind their back. The suit would thus, abate as a whole.
9. Learned counsel for the opposite parties then relied upon a decision in the case of S. Chatterji v. Dr. T.B. Sarwate (AIR 1960 Madh Pra 322). In that case the point for consideration was as to whether in a suit against joint tort-feasors if one of the defendants dies and the plaintiff fails to bring on record the names of his heirs and legal representative, the suit abates as against the other defendants. Answer to the question depended on as to whether the conduct of the plaintiff in not bringing the names of the heirs and legal representative of the deceased joint tort-feasors on record amounted to release of the deceased joint tort-feasors. The court below held that it did not amount to such a release and the suit could be pursued against the remaining joint tort-feasors, implying thereby that as the right to sue survived against the remaining defendants, there was no question of abatement of the suit. The principle that a person cannot sue a tort-feasor after releasing a joint tort-feasor and that if he does it the cause of action does not survive and the suit cannot be filed against the remaining joint tort-feasors, has no application to the facts of the present case which in my opinion squarely falls within the four corners of Order 22, Rule 4, C.P.C.
10. Learned counsel for the opposite parries next contended that the plaintiffs should be permitted to file an application to bring the names of the remaining heirs and legal representative of the deceased Udit Singh on record and that the abatement of the suit if any be set aside. This oral request cannot be entertained at the revisional stage. It will be open to the opposite parties to move such applications before the trial court and the trial court would certainly consider the same on merits.
11. In the result, the revision application succeeds and is allowed. The order dated 13-11-1977 is set aside and it is declared that the Suit No. 200/68 has abated, as all the heirs of Udit Singh have not been brought on record. In the circumstances, I direct the parties to bear their own costs.