Court No. - 9
Case :- CIVIL REVISION No. - 99 of 2017 Revisionist :- Pradeep Kumar Bagla And Another Opposite Party :- Ravi Kant Bagla (Deceased) And 7 Others Counsel for Revisionist :- Vinod Kumar Agarwal Counsel for Opposite Party :- Sumit Daga
Hon'ble Anjani Kumar Mishra,J.
Heard Sri Vinod Kumar Agarwal, learned counsel for the revisionist.
The instant revision is directed against the order dated 19.01.2017 passed by the Civil Judge (Senior Division) Hathras in Suit No. 421 of 2001.
The instant suit was filed by one Ravi Kant Bagla for a declaration and possession, additionally a declaration that a decree passed in Original Suit No.
54 of 1966 on 01.10.1966 was null and void was also sought. During the pendency of the suit, the plaintiff Ravi Kant Bagla died. His heirs filed an application for substitution in place of the deceased plaintiff. The trial Court vide the order impugned dated 19.01.2017 has allowed the substitution application and has also permitted consequential amendments in the plaint. Hence this revision.
The contention of counsel for the revisionist is that an objection has been filed by him alleging therein that on account of the death of the plaintiff and specially in the facts and circumstances of the case, the suit was liable to be abated and that the substitution therein should not have been allowed. In support of this contention he has submitted that the plaintiffs' case is that the property in question had been purchased by his ancestor, his grand father who died during the minority of his father. The grand father's brother was looking after the property as also the interest of the minor (plaintiff's father) and using this superior position, he has alienated also the property which should have come to the share of his father. Similarly, a decree based on an alleged family settlement was obtained on 01.10.1966, which in the facts and circumstances was null and void and, therefore, liable to be declared as such.
It is contended that the plaintiff's father was a party in the suit of 1966. He was alive also on the date the instant suit was filed, but did not join as a plaintiff and was in fact arrayed as a defendant in the suit. The deceased plaintiff's father was alive also on the date the plaintiff died. During the lifetime of the father, the plaintiff had no right to sue and, therefore, no right to sue would devolve upon his heirs. Hence the objection before the court below has also before this Court.
On the previous occasion when the matter was heard Sri Sumit Daga representing respondent nos. 2, 3 & 4 had made a statement that he has no instructions in the matter. None has filed appearance on behalf of the other respondents.
I have considered the submissions made by the counsel for the revisionist and perused the record.
Upon a careful scrutiny of the objection to the substitution application as also the case set out in the written statement filed by the revisionist, this Court finds that both are on identical allegations. Dealing with the objections made to the substitution application would necessarily entail decision of all the issues that arise between the parties in the suit itself.
Besides, the Courts have repeatedly observed that an order passed on a substitution application does not determine the rights of the parties. An order on a substitution application is only for the purpose of prosecution of the litigation.
It, therefore, cannot be said that merely because the substitution application has been allowed the proposed plaintiffs' necessarily have a right to sue. In my considered opinion, the question as to whether the plaintiffs or the substituted plaintiffs have a right to sue, is a question which will necessarily require determination in the suit itself.
In case, as per the suggestion of the counsel for the revisionist, directions are issued that this question or controversy be decided first, prior to the decision of the suit itself, the same, in my considered opinion, would be an exercise in futility and would necessarily entail two trials one for the purposes of determining the question of substitution and the second of deciding the suit itself.
Under the circumstances interest of justice would stand satisfied in case this revision is disposed of, directing the trial Court to decide the suit expeditiously and to ensure that while the suit is being decided finally the objections that have been raised to the substitution application, as regards the rights of the substituted plaintiffs to maintain the suit itself, may also be considered, therein.
Subject to the above, directions/observations, this revision stands disposed of. Order Date :- 14.9.2018 Kamar Digitally signed by ANJANI KUMAR MISHRA Date: 2018.09.14 17:06:33 IST Reason: Document Owner Location: High Court of Judicature at Allahabad