Case Note & Summary
The petitioners, original plaintiffs 1 to 4 and 6, along with Banubai Hariba Mohite (original plaintiff no.5), filed Regular Civil Suit No.278 of 1981 seeking a declaration, injunction, and mandatory injunction for removal of obstruction to their right of way and use of a door, claiming an easement of necessity against the respondents (original defendants). The suit was filed on 19.8.1981. During the pendency of the suit, Banubai Hariba Mohite died on 6.5.1986. The respondents filed an application at Exhibit-86 under Order 22 Rule 3(1) and (2) of the Code of Civil Procedure, 1908 (CPC) seeking dismissal of the suit as abated in its entirety on the ground that the legal representatives of the deceased plaintiff were not brought on record within the prescribed period of limitation. The trial court allowed the application by order dated 10.8.1994, holding that the suit abated as a whole. The petitioners challenged this order by way of a writ petition under Article 227 of the Constitution of India. The High Court examined the nature of the right claimed in the suit, noting that the plaintiffs sought an easement of necessity, which is a joint and indivisible right. The court held that since the right claimed was common and indivisible, the suit could not proceed in the absence of the legal representatives of the deceased plaintiff. The failure to substitute them within limitation resulted in the abatement of the entire suit. The court further observed that the writ petition under Article 227 does not permit re-appreciation of evidence or interference with findings of fact unless there is a patent error of law. Finding no such error, the High Court dismissed the petition, confirming the trial court's order of abatement.
Headnote
A) Civil Procedure Code - Abatement of Suit - Order 22 Rule 3 - Failure to bring legal representatives of deceased plaintiff within limitation - Suit for easement of necessity - Where the right claimed is joint and indivisible, the suit abates as a whole if one plaintiff dies and his/her legal representatives are not substituted in time. (Paras 1-6)
B) Easement - Easement of Necessity - Joint Right - Abatement - In a suit for easement of necessity filed by multiple plaintiffs, the right is joint and indivisible; death of one plaintiff and failure to substitute legal representatives within limitation results in abatement of the entire suit. (Paras 2-6)
C) Constitution of India - Article 227 - Writ Jurisdiction - Scope of interference - High Court in exercise of supervisory jurisdiction under Article 227 does not act as a court of appeal and will not interfere with findings of fact unless there is perversity or error of law apparent on record. (Para 6)
Issue of Consideration
Whether the suit for easement of necessity abates in its entirety when one of the plaintiffs dies and her legal representatives are not brought on record within the prescribed period of limitation.
Final Decision
The High Court dismissed the writ petition, confirming the trial court's order dated 10.8.1994, which allowed the application under Order 22 Rule 3 CPC and dismissed Regular Civil Suit No.278 of 1981 as abated in its entirety.
Law Points
- Abatement of suit
- Order 22 Rule 3 CPC
- Legal representatives
- Easement of necessity
- Joint decree
- Article 227 Constitution of India
Case Details
2006 LawText (BOM) (09) 34
Writ Petition No.4032 of 1994
Mr Dilip Bodke for the petitioners; Mr Vivek Salunkhe i/b Mr P.B. Shah for the respondents
Dinkar Ramchandra Sapkal and ors.
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Nature of Litigation
Civil writ petition challenging order of abatement of suit
Remedy Sought
Petitioners sought to set aside the trial court order dismissing the suit as abated
Filing Reason
Failure to bring legal representatives of deceased plaintiff on record within limitation period
Previous Decisions
Trial court allowed application under Order 22 Rule 3 CPC and dismissed suit as abated
Issues
Whether the suit for easement of necessity abates in its entirety when one of the plaintiffs dies and her legal representatives are not brought on record within the prescribed period of limitation.
Submissions/Arguments
Petitioners argued that the suit was for an easement of necessity and the right was joint and indivisible, but they failed to substitute legal representatives of deceased plaintiff within limitation.
Respondents contended that the suit abated as a whole due to non-substitution of legal representatives of deceased plaintiff Banubai Hariba Mohite.
Ratio Decidendi
In a suit for easement of necessity, the right claimed is joint and indivisible. If one of the plaintiffs dies and his/her legal representatives are not brought on record within the prescribed period of limitation, the suit abates in its entirety. The High Court under Article 227 will not interfere with such finding unless there is a patent error of law.
Judgment Excerpts
By this writ petition under Article 227 of the Constitution of India, the petitioners have taken exception to the order dated 10.8.1994, by which an application at Exhibit-86 filed by respondent no.1 under Order 22, Rule 3(1) and (2) of the Code of Civil Procedure, seeking dismissal of Regular Civil Suit No.278 of 1981 as abated in its entirety, has been allowed.
The petitioners and Banubai Mohite instituted Regular Civil Suit no.278 of 1981 for declaration, injunction and also for mandatory injunction seeking directions to the respondents to remove the obstruction in enjoyment of their right of way and use of the door, as shown in the map annexed to the plaint. They have claimed an easement of necessity against the respondents.
The right claimed by the plaintiffs in the suit is an easement of necessity. The right claimed is joint and indivisible. Therefore, the suit could not proceed in the absence of the legal representatives of the deceased plaintiff. The failure to bring the legal representatives on record within the prescribed period of limitation resulted in abatement of the entire suit.
Procedural History
Regular Civil Suit No.278 of 1981 was filed on 19.8.1981. During pendency, plaintiff no.5 Banubai Hariba Mohite died on 6.5.1986. Respondent no.1 filed application Exhibit-86 under Order 22 Rule 3 CPC seeking dismissal of suit as abated. Trial court allowed the application on 10.8.1994. Petitioners filed Writ Petition No.4032 of 1994 under Article 227 of the Constitution of India challenging that order. The High Court dismissed the writ petition on 29.9.2006.
Acts & Sections
- Code of Civil Procedure, 1908: Order 22 Rule 3(1), Order 22 Rule 3(2)
- Constitution of India: Article 227
