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2024 (4) TMI 1084 - JAMMU AND KASHMIR AND LADAKH HIGH COURTAbatement of suit claiming injunction - effect on suit when the plaintiff seeking injunction, dies - disheritance by deceased-plaintiff - whether cause of action in an injunction suit will survive to the legal heirs of deceased plaintiff and whether upon death of the plaintiff, the relief of injunction would be rendered nugatory? HELD THAT:- There is a distinction between the death of the plaintiff and the death of the defendant. The injunction is operative against the defendants. Upon death of the defendant, the question of binding his legal representatives by injunction would not arise. But in a case where the plaintiff, who is seeking injunction dies, the same position will not hold good. The right of injunction does not die with the death of plaintiff. In the instant case, the plaintiff i.e. deceased-Usha Tiwari had sought injunction that the petitioners herein should not interfere in her possession over the property in dispute. A suit claiming injunction of this nature does not abate on death of the plaintiff. The cause of action would survive to his/her legal representatives, who come in possession of the said property - One thing is clear that if the respondent and his son succeed in proving before the trial court that petitioner No. 1 has been disinherited from the suit property and that original plaintiff had executed a Will in favour of Yujure Tiwari, her grandson, they have a right to obtain an injunction against the petitioners. Therefore, it cannot be stated that right to suit does not survive in their favour. The learned civil judge has not discussed the matter in detail and has simply noted that as per the plaintiff, cause of action does not survive and that no application has been moved for impleadment of legal representatives though period of 90 days is over. On this ground, the learned civil judge has concluded that the suit stands abated. The order passed by the civil court does not deal with the merits of the issue relating to abatement of the suit. The said observation of the learned civil judge could not have precluded the learned appellate court from considering the issue on its merits and for taking a different view. Thus, it cannot be stated that the learned appellate court has, while passing the impugned order, either committed any illegality or it has acted with material irregularity - The revision petition is without merit and is dismissed as such.
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