Whole suit abated

Distinguished Panelists , The whole suit is abated by the “Trial” court while allowing an application under Order 22 Rule 2 of CPC (O22R2) filed by defendant no.2. Operative part of Order as under: “I am of the opinion that in the instant suit the plaintiff Nos. 1 and 2, being the partners of a partnership firm i.e. the defendant No. 1, as joint plaintiffs had a joint cause of action, for which the right to sue does not exist to the surviving plaintiff No. 1, and furthermore, that a revision is certainly not a continuation of a suit. The facts and circumstances of the Judgments cited by the plaintiff No. 1 do not match with those of the instant case, for which the said judgments do not help the plaintiff No. 1 in any way. As such, this Court has come to the conclusion, that as the plaintiff No. 1 and the plaintiff No. 2, since deceased, being partners of a partnership firm, have a joint cause of action, and, as despite having full knowledge of the death of the plaintiff No. 2, the plaintiff No. 1 did not file any application for substitution of the deceased plaintiff No. 2 by his sole legal heir, his wife, within the statutory period of limitation before this Court – the entire suit has abated.” Question is: What is required to prove that “Cause of Action” survives with the remaining parties/surviving plaintiff? What is required to prove that Suit for Declaration & Permanent Injunction involving immovable property cannot be abated on the ground of death of one plaintiff? Why suit should survive when one of the defendants is a third party? What is required to prove that plaintiff/partner of a firm has his individual Rights over suit property? What should be the ground to challenge the order of abatement of whole suit? Case detail: Title Suit for declaration & permanent injunction was filed by 2(two) plaintiffs/partners against defendants 1, their partnership firm, defendant no2. another partner of the firm. By a court order defendant no.3, an outsider was made party in the suit. While the suit was pending, lower court rejected the petition filed by defendant no.2 under Order 7 Rule 11 of CPC (O7R11) for rejection of plaint. In the year 2019, under Article 227, defendant moved a revisional application (CO) before the high court and since September, 2019 there was an order of Stay of all further proceedings before the city civil court. In November, 2022 one of the plaintiff died. Hon’ble High Court allowed CAN application filed by Revisionist/defendant for substitution of deceased respondent/plaintiff by Legal Representative (LR). In April, 2023, after 90 days of the death of one of the plaintiff, and, after substitution of LR was allowed by the Hon’ble HC, defendant filed an application under Order 22 Rule 2 of CPC before Judge-In-Charge of lower court without serving copy to surviving plaintiff, claiming that Cause of Action of both the plaintiffs were same and inseparable, as such, whole suit must be abated. Subsequently, in August, 2023, on administrative ground/s Hon’ble HC remanded for fresh hearing of application under O7R11. Regular P.O. of Lower Court took up O22R2 petition for hearing in November, 2023 after “Remand Notice” was communicated by the HC in the month of September, 2023 In November, 2023, Surviving plaintiff filed a petition before regular P.O. to record death of plaintiff and transpose Legal Representative substituted by Hon’ble HC as defendant. Defendant submitted that Revisional Jurisdiction is not a continuation of suit as such LR substituted by High Court is not applicable before Lower Court and whole suit must be abated on this ground also. Case Laws cited by Plaintiff: Supreme Court of India in Siravarapu Appa Rao vs Dokala Rppa Rao on 11 October, 2022 (CIVIL APPEAL No.7145 OF 2022) Point: Suit survives with remaining parties: Supreme Court of India in - MARINGMEI ACHAM v. M MARINGMET KHURIPOU [2022] 10 S.C.R. 148. – Point: Substitution in appeal will ensure towards the proceedings itself. Case Laws cited by defendant: (2014) 9 SCC 78, paragraph 28 (2019) 6 SCC 424 and 2023 (3) ICC 115 (Cal.). Paragraph no. 16 AIR 2017(SC) page 2419 para 20 & 22. AIR 2019(SC) page 3297.