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PETITIONER: MAULVI ISSA QURESHI

       Vs.

RESPONDENT: DISTRICT JUDGE, DEORIA & ORS.

DATE OF JUDGMENT:       16/08/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. G.B. PATTANAIK (J)

CITATION:  JT 1996 (8)   175

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted      We have heard learned counsel on both sides.      These two  appeals by  special leave  arise against the orders of  the High  Court of  Allahabad dated  15.11.1995 & 1.3.1395 made  in Revision  Petition no.16944/95 and in CMWP No.29890/91. The admitted facts are that Ram Nihore, said to be  liviing,  laid  suit,  impleading  Mansari    as  a  co- plaintiff,  for   perpetual   injunction   restraining   the appellant  from  possession  and  enjoyment  of  the  plaint schedule property.  The  suit  came  to  be  laid  on  April 25,1988. The suit was dismissed for default on May 27, 1988. An application  under Order  9 Rule  4, C.P.C. was filed for restoration on  May 30, 1988. The appellant filed objections stating that  Ram  Nihore  had  already  died  on  September 4,1979. Therefore  it was fraudulent  suit laid on behalf of a dead  person by the co-plaintiff. That application came to be dismissed  on May  30,1988 Subsequently, the co-plaintiff filed an application for substitution of the son of the dead plaintiff on February 6,1990. The appellant raised objection that  since   the  suit   had  already  been  dismissed,  no substitution could  have been  made. Accordingly Civil Court dismissed the application on February 6,1990. The respondent carried the  matter in  revision to  the District Judge. The District Judge  by his  order dated  July 6,l991 allowed the application and  directed substitution.  When it  came to be challenged before  the   High Court  in W.P., the High Court dismissed the same.      The question  therefore, is : whether the respondent is entitled to  be substituted  in  a  suit  which  is  already dismissed and  has became final? Though Ms. Sandhya Goswami, learned counsel  for the  respondents sought  time again and again,  for   filing  the   counter-affidavit,  no   counter affidavit has  been filed.  From the narration of the facts, it is  clear that  when the  suit had  come to  be filed  on beha1f or  a dead  person professing  to  be  alive  and  co

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=plaintiff was   impleaded  in the suits it would be obvious that the  o- plaintiff  played  fraud  upon  the  Court  and misused   judicial process.  The question  then is : whether the   substitution of  the son  of the dead plaintiff in the suit would  be permissible? It is axiomatic that the  son of the deceased  has no better independent right  than what the original plaintiff himself had. After  filing of the suit on behalf of  a dead  person and  when   the suit  has  already become final  the question  of  substitution does not arise. Therefore the  District   Judge committed  manifest error of law in  directing   substitution and  the High Court was not right in  declining to interfere with the order.      The appeals are accordingly allowed. No costs,