Heard Shri H.M. Srivastava, learned counsel for the petitioner. Facts giving rise to the dispute are as under.
Original Suit No. 173 of 2003 was filed by one Indra Pal @ Indal on 17.04.2003 seeking cancellation of the sale deed dated 24.03.2003 said to have been executed in favour of the petitioner. The petitioner-defendant put his appearance and filed written statement. One of the objection raised was that Indra Pal @ Indal had died on 11.04.2003, hence, the suit in the name of a dead person was not maintainable. One of the issues framed by the trial court was as under.
" Whether plaintiff Indra Pal @ Indal was already dead before he filed suit. If the answer is in affirmative, what is the effect?"
The aforesaid issue was decided as a preliminary issue and the trial court held that Indra Pal @ Indal had died on 11.04.2003 and dismissed the suit as not maintainable as the plaintiff was already dead on the date of institution of the suit. The respondents claiming to be heirs went up in appeal. Appellate court vide order dated 25.11.2009 admitted the appeal. Aggrieved, the petitioner-defendant has approached this Court.
It has been urged by the learned counsel for the petitioner that since the suit filed in the name of a dead person had no existence in the eyes of law, as such, the appeal challenging the order was not maintainable and the appellants since were not party in the suit, no appeal was maintainable at their behest.
I have considered the argument advanced on behalf of the petitioner and perused the record.
Admittedly, the suit was dismissed on the ground that that on the date of filing of the suit, the plaintiff was already dead. The issue before the appellate court was whether the finding recorded by the trial court that Indra Pal @ Indal died on 11.04.2003 prior to institution of suit was correct or not.
In view of above, it cannot be said that the appeal filed by the heirs of the plaintiff challenging the said finding of the trial court would not be maintainable, for in case, the findings of the trial court is found to be vitiated and liable to be set aside, the suit would be maintainable and liable to be continued.
In view of above, no illegality appears to have been committed by the lower appellate court in admitting the appeal and overruling the objection raised by the petitioner that the suit itself being not maintainable the appeal could not be filed or the appellants being not a party in the suit the appeal at their behest was not maintainable.
The writ petition, accordingly, fails and stands dismissed.
08.01.2010 VKS