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TMI Blog2016 (1) TMI 1504X X X X Extracts X X X X X X X X Extracts X X X X ..... ubsequent purchaser as party to the proceeding and the application filed under Order 9 Rule 9 CPC to set aside the ex-parte dismissal of the suit and to restore the same came to be allowed. 3. The learned counsel appearing for the revision petitioners would submit that one Parijathammal as plaintiff has filed the suit in O.S. No. 27 of 2005 for bare injunction in respect of 4 items of the suit property. The said Parijathammal died on 09.07.2006 and thereafter, the suit was dismissed for default on 14.07.2006. While so, the respondent herein who has purchased the 1st item of the suit property on 24.06.2006 has filed the applications to restore the suit which was dismissed for default on 14.07.2006 and also to implead herself as party to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tiate his argument, the learned counsel for the revision petitioners relied upon the following decisions: "1. (1973) 1 Supreme Court Cases 688, Phul Rani v. Sh. Naubat Rai Ahluwalia 2. 2013 (3) CTC 356, Smt. Bhagwati v. Shri Kanshi Ram 3. 109 (2004) DLT 852, Asha Batra and Others v. Dharam Devi 4.CDJ 2013 SC 310, Ram Prakash Agarwal and Others v. Gopi Krishan (Dead through L.Rs.) and Others" 6. Resisting the same, the learned counsel for the respondent would submit that the respondent/plaintiff is none other than the sister of the deceased Parijathammal and also the sister of the deceased first defendant. The learned counsel would further submit that the respondent herein has restricted her claim only in respect of 1st item of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the proceeding. On perusal of the plaint it is seen that the cause of action has been mentioned as "The cause of action for the suit arose on 27.01.1967 when the suit property was purchased and on 17.05.2004, 20.03.2005 the defendants made an attempt to trespass into the suit property". But according to the respondent/proposed party, she has purchased the property only on 26.04.2006 and so, as on the date of filing of the suit, there is no cause of action and she was not the person in possession. Further, if the suit is for declaration of title for the entire 4 items of the suit property, the respondent herein can step into the shoes of the deceased party as her valuable right is involved and hence, her impleadment is necessary and mand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause the ejectment proceedings to abate if the right to sue survives. That is the formula contained in Order 22 Rule 1 of the Code of Civil Procedure, a formula simple in its wording but not simple in its application. The "right to sue" as said succinctly in Saraj Chandra v. Nani Mihan means 'the right to bring a suit asserting a right to the same relief which the deceased plaintiff asserted at the time of his death". Thus contracts involving the exercise of special skill like a promise to paint a picture do not bind the representatives of the promisor nor do they create in them a right that can survive the death of the promisor. 21. We have referred to some of the decisions in the three Categories, not with a view to determining the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the defendant. But in the instant case it was a suit for bare injunction and when the suit was dismissed for default on the death of the plaintiff, the proposed party cannot step into the shoes of the deceased plaintiff and contest the suit. So, the above decisions are not relevant to the facts of the present case. 11. As discussed supra, the respondent/proposed party has no locus standi to file an application to restore the suit because the respondent herein has purchased only the 1st item of the suit property. Further, since the suit is for bare injunction, there arose no cause of action for the proposed party because she has purchased the property only after the filing of the suit. The Trial Court without considering these aspects in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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