Court No. 4
Writ Petition No. 523 of 2010
Ram Swaroop ------- Petitioner
Versus
Raghuveer & Anr. ------- Respondents
Hon'ble Krishna Murari, J.
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.
2
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