1. This is a plaintiff's appeal arising out of a suit for possession and mesne profits. Three kinds of property were embraced in the claim; (a) zamindari share to the extent of 3 pies 6¾ chhataks each in mauzas Reoli and Bhita; (b) mortgagee rights in 2 pies 2 chhataks of Reoli and (c) certain cultivatory holdings set out at the foot of the plaint. The last-named item, by an oversight, has been omitted in the translation of the plaint as contained in the paper book.

2. Mt. Ram Dei Misrain executed a zar-i-peshgi lease of these properties in favour of Ram Lochan Misra, defendant 7, on 25th June 1919, for five years. Under the terms of this instrument, she reserved to herself the right to cancel the lease by giving a month's notice to the lessee. Surju Misra defendant 1, pre-empted the lease, on 28th June 1920. Mt. Ram Dei gave a notice to Ram Lochan Misra, the original lessee, and Surju Misra, the pre-emptor, intimating thereby that she had put an end to the lease and asking for possession. Surju Misra did not surrender possession. Ram Lochan Misra gave up possession of the cultivatory holdings but the defendants second party, namely Jurawan Misra, Dwarka Misra, Birna Misra, Bholi Misra and Ram Sarup Misra took forcible possession of the cultivatory holding; hence the suit for possession and damages.

3. Plaintiff's claim for possession and mesne profits relating to the zamindari shares in Reoli and Bhitha and the mortgagee rights in Reoli have been decreed. The defendants have submitted to the decree. This part of the claim therefore need not be canvassed any further.

4. As to the cultivatory holdings, the defendants second party put in a joint written statement and contended that they had been in possession of the plots in controversy in their own rights for a long time: vide para. 2 of the additional pleas in the written statement, and that the plaintiff neither had nor has any cultivatory holding nor were these defendants in possession of any cultivatory holding of the plaintiff. They also repudiated the claim as to damages which they described as "a mountain of falsehoods."

5. During the progress of the suit, Jurawan Misra, defendant 2, was examined and he supplemented his pleadings by a statement that he and his associates were the sub-tenants of the plaintiff. As a result of this statement, the Court directed the defendants second party under Section 202, Agra Tenancy Act 2, 1901, Local, to institute a suit in the revenue Court to have the question of the alleged tenancy determined by the said Court. Out of the five defendants, defendants 2 to 4 namely Jurawan Misra, Dwarka Misra and Birna Misra instituted a suit in the revenue Court. The other two defendants, Bholi Misra and Ram Sarup Misra did not join in the suit. The trial of the suit in the revenue Court lasted for an unconscionably long time. During the progress of the trial Bholi Misra and Ram Sarup Misra, defendants 5 and 6 died. The exact time of their death is not known. In the statement of Mt. Ram Dei recorded under Order 10, Rule 1, Civil P.C., on 12th April 1927, she stated that Bholi Misra and Ram Sarup Misra. fell ill during the Holi season and died in Chait two or three years ago. She further stated that they died three years after the suit had been filed and that they lived together and cultivated jointly.

6. The legal representatives of Ram Sarup Misra and Bholi Misra were not brought on the record within the statutory period of limitation.

7. The revenue Court held that defendants 2 to 6 were not tenants or subtenants of the plaintiff, but that they were trespassers.

8. No distinct issue was framed by the trial Court as to how far the plaintiff's claim relating to the cultivatory holding was affected by the death of Bholi Misra and Ram Sarup Misra, their legal representatives not having been brought on the record. Certain portions of the judgment are vague and very far from being satisfactory:

Defendants 5 and 6 are said to be dead and no legal representative has been brought on the record, the names of 5 and 6 shall be struck off from the plaint and as regards them the suit must be considered to have abated; defendant 7 is also dead and his name too shall be struck off. It should however be remembered that defendants 5 and 6 had not filed the suit in the revenue Court. The revenue Court suit had been filed only by defendants 2 to 4 and hence the striking off the names of defendants 5 and 6 does not harm to (sic) the plaintiff,

9. Nothing turns upon the death of defendant 7 who was only a pro forma defendant.

10. The Court of first instance gave the plaintiff a decree for possession and for Rs, 1,083-10-0 which was the amount of mesne profits claimed.

11. Of the defendants second party, Jurawan Misra, defendant 2, appealed. He impleaded Dwarka Misra and Bholi Misra as pro forma respondents, under Order 41, Rule 4, Civil P.C.

12. The point principally urged in the lower appellate Court was that during the pendency of the suit Bholi Misra and Ram Sarup Misra having died, and that no proceedings relating to substitution of names having been taken in time, the claim of the plaintiff-respondent had abated against all the defendants-appellants. The appeal was heard by Muhammad Junaid, 2nd Additional Subordinate Judge of Gorakhpur. He gave effect to that contention and held that the plaintiff's suit abated as a whole by reason of the non-substitution of the heirs of Bholi Misra and Ram Sarup Misra within the time allowed by law.

13. Plaintiffs impugn the correctness of the aforesaid decision.

14. There is no legislative authority for the proposition that where one out of several defendants dies and his legal representative is not brought on the record within the time allowed by law the suit abates as a whole.

15. Section 368, Act 14, 1882 had given rise to a number of conflicting decisions. That section was worded as follows:

Where the plaintiff fails to make such an application within the period prescribed therefor the suit shall abate.

16. Ex facie the language of this section was very wide and was open to the construction that under given circumstances the suit abated as a whole. It is significant that Section 368 has been remolded and recast in Act 5, 1908, and the phraseology of the corresponding section (Order 22, Rule 4, sub-R. 3) is very different."

Where within the time limited by law no application is made under sub-R. 1 the suit shall abate as against the deceased defendant.

17. Order 22, Civil P.C., is the only enactment of law which contains any provisions as to abatement of suits by reason of the death of the plaintiff or the defendant during the pendency of the suit where his legal representative has not been substituted within the time allowed by law. Under Order 22, Rule 3, sub-R. 2 "the suit under similar circumstances "shall abate so far as the deceased plaintiff is concerned." Under Order 22, Rule 11, the rules of this chapter are applicable to appeals. The word "plaintiff" and the word "defendant" include an appellant and a respondent and the word "suit" an appeal. To hold that the whole suit or the entire appeal abates is not only unsupported by statute but is in the teeth of the clear provisions of Order 22.

18. Order 1, Rule 9, Civil P.C., would also point to the conclusion that a suit is not to be defeated merely by reason of non-joinder' of parties. It follows that the Court has in every suit to deal with the matter in controversy as regards the rights and interests of the parties actually before it. There may be cases where the joinder of a party is a matter of expediency. There are other cases where the presence of a party is essential for the progress of the suit. The dismissal of a suit for non-joinder of a party whose presence is imperative and essential for the trial of the suit and for the determination of rights and interests of all persons concerned is a very different thing from an abatement within the purview of Order 22, Civil P.C.O. 22 expressly provides for an abatement of the suit against a deceased plaintiff or a deceased defendant or against a deceased appellant or a deceased respondent. It does not provide for the abatement of the suit against all the other parties who are present before the Court. The rights and interests of such parties should be and have to be adjudicated upon the merits. It is possible, however, to conceive cases where, by reason of the absence of necessary parties, there cannot be a proper adjudication or trial of the suit or of the appeal. The absence of such parties is calculated to prejudice the trial. Where the suit is instituted at the instance of trustees, executors or co-owners or the suit is of the nature of partition, of rendition of account, or of dissolution of partnership or where the suit is directed against joint tenants or joint tortfeasors, the absence of a particular person from the original suit or failure to substitute the names during the pendency of the suit or of the appeal may be fatal. By-reason of his absence from the array of parties such person cannot be bound by the decision passed in the suit. In his absence, the rights and interests of the persons who are actually before the Court cannot be properly and finally determined. In such cases the suit is liable to dismissal not because the suit has abated under Order 22, Civil P.C., but because the suit cannot be properly heard or disposed of without prejudicing the rights of necessary parties. There can be no rule exhaustive enough to cover all possible cases. Much would depend upon the frame of the suit, the nature of the cause of action and the relief claimed.

19. Where, upon the death of a defendant the right to sue does not survive, the claim abates as a whole, actio personalis moritur cum persona.

20. Where a suit has been instituted by the plaintiffs jointly or is directed against several defendants cases may occur in which the several plaintiffs or defendants have defined and distinct rights. Where the right of the plaintiff and the defendants is ascertained or ascertainable the death of one or more of them cannot cause the abatement of the entire suit. The suit can only abate with reference to such of the plaintiffs or defendants whose legal representatives have not been substituted on the record. This cannot lead to any anomaly. There can be no conflicting or contradictory decrees by reason of the adjudication of the claims for or against parties who are actually before the Court. The adjudication relates to property which is distinct and there is no community of interest in such cases between the parties who are actually before the Court and those who are not, namely the legal representatives of the deceased.

21. In cases falling under this category it could not be said that the decree passed by the Court is incapable of execution.

22. It should be borne in mind that where a plaintiff or a defendant dies during the pendency of the original suit in the trial Court there cannot be any possibility of two conflicting decrees.

23. The learned counsel for the respondents has taken this Court through a long string of decisions in Narain Das v. Sheo Din A.I.R. 1926 All. 234 and Wajid Ali Khan v. Puran Singh A.I.R. 1925 All. 108. This case went on appeal before their Lordships of the Privy Council (A.I.R. 1929 P.C. 58) who modified the decision of Daniels and Neave, JJ. Their Lordships substantially accepted the view taken by the Subordinate Judge and observed that they preferred this view to that taken by the majority of the learned Judges in the High Court; that in the suit the abatement against the deceased plaintiff made it impossible to proceed effectively with the hearing of the appeal as against the surviving plaintiffs and rendered the judgment and decree of the appellate Court passed in the absence of the representatives of the deceased plaintiff a complete nullity so that the surviving plaintiffs were entitled to be restored to possession in accordance with the decree of the first Court along with the representatives of the deceased plaintiff. With this view their Lordships were unable to agree.

24. Bikramjit Rai v. Darshan Das A.I.R. 1925 All. 141. There was a Letters Patent appeal from this decision and the decree passed by Neave, J., was modified upon the ground that where the defendants were in possession of distinct parcels of land the death of one did not cause an abatement of the entire suit: Sheo Chand Misra v. Sita Ram A.I.R. 1927 All. 331 and Matbar Singh v. Abhai Nandan Prasad A.I.R. 1927 All. 543, per Walsh and Banerji, JJ. This decision was overruled by Lindsey, Mukerji and Iqbal Ahmad, JJ.: Mahadeo Singh v. Talib Ali A.I.R. 1928 All. 345, Ambika Prasad v. Jhinak Singh A.I.R. 1923 All. 211 and Faqira v. Hardewa A.I.R. 1928 All. 172.

25. Suits by or against members of a coparcenary body governed by the Mitakshara school of Hindu law rest upon a different principle. So also do suits relating to pre-emption.

26. It will serve no useful purpose to analyze or comment upon in detail either the authority referred to above or other decisions of the High Courts. Some of these decisions are conflicting. There are others which may be taken to have been decided with reference to the facts peculiar to them.

27. It may be incidentally mentioned that in para. 5 of the memorandum of appeal in the lower appellate Court Jurawan Misra pleaded as follows:

If the Court does not consider the claim of the plaintiff to have abated against all the defendants-appellants, still it has abated against Bholi Misra, defendant 5, Ram Sarup Misra, defendant 6 and Ram Lochan Misra, defendant 7. The appellants are not liable to pay damages in respect of the lands in the possession of the aforesaid persons, that is the appellants are not liable for more than their share of the damages.

28. The above would suggest that defendants 2 to 6 were in possession of specific portions of the cultivatory holding.

29. Mt. Ram Dei claimed a joint decree against defendants 2 to 6. The complaint against them was that they had joined in a trespass. It is not clear from either the plaint or the written statement as to whether defendants 2 to 6 were jointly in possession of the entire cultivatory holding or whether they were in possession of specific plots or specific areas. It is also not clear from the pleadings whether Bholi Misra and Ram Sarup Misra, deceased, were properly represented by the other defendants, namely Jurawan Misra, Dwarka Misra and Birna Misra. It is not necessary at this stage to express any opinion as to how far the claim of the plaintiff for possession and damages relating to the cultivatory holding will be affected if defendants 2 to 6 are found to be in possession of the holding jointly or if defendants 2 to 4 do not represent the deceased defendants Bholi Misra and Ram Sarup Misra. For the proper determination of the appeal I think it necessary to remit the following issues:

(1) Were defendants 2 to 6 in possession as plaintiffs' subtenants or trespassers?

(2) Were defendants 2 to 6 in joint possession of the cultivatory holding or were they in possession of specific areas or specific plots?

(3) Were defendants Bholi Misra and Ram Sarup Misra properly represented in the action by the remaining defendants, namely Jurawan Misra, Dwarka Misra and Birna Misra?

30. Parties may be permitted to adduce fresh evidence.

Niamatullah, J.

31. I am in entire agreement with my learned colleague in his conclusion and in the reasons on which it is based. I desire only to emphasize one of those reasons as it appears to me to conclude all arguments to the contrary.

32. Before the passing of the Code of Civil Procedure of 1908 failure to implead the legal representatives of a deceased defendant entailed, in many cases, the abatement of the whole suit, as Section 368, Act 14 of 1882 expressly laid down that "the suit shall abate." Indeed a literal construction of that section made it arguable that in every case the suit should abate in its entirety. This view did not find favour for obvious reasons and it was made to depend on the circumstances of each case whether the suit should be deemed to have abated partially or as a whole.

33. The Code of 1908 introduced a material change in so far as abatement of a suit as a whole is concerned. Order 22, Rule 4, provides in express terms that "the suit shall abate as against the deceased defendant" only. No suit can therefore abate in its entirety in cases where there are more than one defendant, not being pro forma, and one of them dies and the plaintiff fails within the period of limitation to make his legal representatives parties to the action. It may be that substantially the same result follows by operation of another rule of law, viz. that a suit must be dismissed if, having regard to the nature of it, the relief claimed therein cannot be granted in the absence of parties whose rights are to be inevitably affected by such relief being granted. The aid of Order 1, Rule 9, cannot be invoked under those circumstances. The rule that no suit shall be defeated by reason of non-joinder of parties, and the Court may in every case deal with the matter in controversy so far as regards the rights and interests of the parties actually before it

34. is confined to cases where the Court can deal with the matter in controversy with regard to the rights and interests of the parties before it. Madho Ram v. Jagat Singh [1919] 52 I.C. 18 and Gendan Lal v. Babu Ram [1912] 13 I.C. 197 are instances in which the suits had to be dismissed for want of necessary parties in spite of Order 1, Rule 9. In the second of these cases some members of a joint Hindu family were not made parties to a suit on mortgage sought to be enforced against the family and when the objection as to non-joinder was taken the suit as against them was barred. It was held that the Court could not proceed under Order 1, Rule 9, because the interests of the members were not separate and distinct and that the whole suit should be dismissed. The conjoint effect of Order 22. Rule 4, Order 1, Rule 9 and of the rule that a suit must be dismissed in the absence of parties whose rights are necessarily and inevitably to be affected by the relief by the plaintiff being granted is that the suit cannot abate as a whole in consequence of the death of one of several defendants and of his legal representatives not being impleaded in time, that it abates only against the deceased defendant and the position is virtually one of non-joinder of such defendant. If the Court can deal with the matter in controversy between the parties before it and can grant to the plaintiff a relief as against the surviving defendants without prejudicing the rights of the legal representatives of the deceased defendants it shall do so. If it is not possible to do so the suit has to be dismissed. It is a misnomer to characterize the dismissal under such circumstances as an abatement of the suit in its entirety. It is not a different way of expressing the same idea. Cases are conceivable in which the difference is one of substance. Abatement under Order 22, Civil P.C., completely bars a suit on the same cause of action (Order 22, Rule 9). Dismissal for want of necessary parties may not bar another suit on the same cause of action if differently framed and brought for a relief which can be granted against the surviving defendants without prejudicing the rights of the legal representatives of the deceased defendant. It is not necessary for the purposes of the present appeal to pursue this aspect of the case any further. The effect of non-joinder of the legal representatives of the deceased defendants is therefore an abatement of the suit as against them only. How far the absence of their heirs from the array of parties will affect the right of the plaintiff to obtain relief against the surviving defendants will depend on the circumstances of the case. The issues which my learned colleague proposes to remit relate to such circumstances. I therefore concur in his order remitting those issues for trial and findings.

35. The case is remanded under Order 41, Rule 25, to the lower appellate Court for findings on the following issues:

(1) Were defendants 2 to 6 in possession as plaintiff's sub-tenants or trespassers?

(2) Were defendants 2 to 6 in joint possession of the cultivatory holding, or wore they in possession of specific areas or specific plots?

(3) Were defendants Bholi Misra and Ram Sarup Misra properly represented in the action by the remaining defendants, namely Jurawan Misra, Dwarka Misra and Birna Misra?

36. The parties shall be at liberty to adduce such evidence as they may be advised to produce. The findings should be returned within three months, after which the usual ten days shall be allowed for objections, if any.