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1981 DIGILAW 161 (CAL)

Jyotish Chandra Mondal v. Arun Kumar Mondal

1981-05-06

CHITTATOSH MOOKERJEE, RAM KRISHNA SHARMA

body1981
JUDGMENT The judgment of the Court was as follows :–– The respondent Nos. 21, 22, 27, 28, 32, 33, 36, 38, 39 and 48 of this appeal are dead. The appellants did not make any application within time for recording their deaths and for bringing on record the heirs and legal representatives of the said deceased respondents. The appellants have now filed the present application for setting aside abetments by the death of the aforesaid respondents and for bringing on record their heirs and legal representatives. We have heard this application with notice to the learned Advocates for the appearing respondents. We are of the view that for the reasons mentioned hereinafter that it is not necessary for issuing Rule upon the surviving respondents and the heirs of the deceased respondents. 2. This appeal arises out of a suit for partition brought by the plaintiff-respondents in the year 1961. There are numerous respondents in the appeal and the issue of a Rule at this stage would further delay the disposal of the appeal which has been pending for the last 11 years. The predecessor-in-interest of the present appellants was defendant No. 1 in the said suit. The defendant No.2 was the wife of the original defendant No.1 and the defendant Nos. 3, 4 and 5 were the sons of the defendant No.1. The original defendant Nos. 6 to 28 were described as transferees either from the said defendant No.1 or from the defendant Nos. 2 to 5. The trial court decreed the suit in part in the preliminary form on contest against the defendant Nos. 1, 2 to 5, 6 to 12, 13 to 16 and 26 and ex parte against the rest. 3. Prima facie, there was no conflict of interests between the appellants and the aforesaid deceased respondents. The deceased respondents as already stated along with other defendants allegedly derived their title from the defendant No.1 or defendant Nos. 2 to 5. Prima facie, the defendant-appellants do not seek any relief in this appeal against the defendant-respondents. 3. Prima facie, there was no conflict of interests between the appellants and the aforesaid deceased respondents. The deceased respondents as already stated along with other defendants allegedly derived their title from the defendant No.1 or defendant Nos. 2 to 5. Prima facie, the defendant-appellants do not seek any relief in this appeal against the defendant-respondents. Even if the defendant-appellants had failed to implead the said defendant-respondents in their memorandum of appeal, the decree of the trial court having proceeded on a ground common both to the appellants and the defendant-respondents, this Court while disposing of the appeal would be entitled to consider whether or not its discretionary jurisdiction under Rules 4 and 33 of Order 41 of the Code of Civil Procedure ought to be exercised. Therefore, in case without issuing any Rule upon the heirs of the deceased respondents, we bring them on record there would be no question of depriving them of any vested rights or of causing any prejudice to them. This course adopted by us, finds support from the observations of the Supreme Court in (1) Ratan Lal Shah v. Firm Lalman Das Chhadamma Lal and Another, AIR 1970 SC 108 and in (2) Harihar Prasad Singh and Others v. Balmiki Prasad Singh and Others, AIR 1975 SC 733 (paragraphs 30 to 36). 4. Another reason why no Rule need be issued is that the heirs of deceased respondent No. 22 are already on record as respondents 23, 24, 30 and 31. Similarly, the heirs of the deceased respondent No. 28 are on record as respondents 44 and 45. Two of the heirs of the respondent No. 48 are also on record as respondent Nos. 51 and 52. The plaintiff-respondents have not also filed any counter-affidavit denying the averment made in the instant application and they have also not disputed that the respondent Nos. 36 and 38 left no heirs on intestacy. We have also indicated that this appeal at the instance of the defendants Nos. 1 to 5 proceed on a ground common to them and the deceased respondents. Therefore, we propose to add the heirs of the deceased respondent Nos. 21, 27, 32, 33 and 39 as respondents. 5. We, accordingly, dispose of the application dated 10th November, 1980 in the following manner :–– Let the death of the respondents mentioned therein be recorded. 1 to 5 proceed on a ground common to them and the deceased respondents. Therefore, we propose to add the heirs of the deceased respondent Nos. 21, 27, 32, 33 and 39 as respondents. 5. We, accordingly, dispose of the application dated 10th November, 1980 in the following manner :–– Let the death of the respondents mentioned therein be recorded. We further direct that a necessary note be made against the respondent Nos. 23, 24, 30 and 31 that they are also heirs of the deceased respondent No. 22. Similarly, a note be made in respect of the respondent Nos. 51 and 52 who are among the heirs of the deceased respondent No. 48. The remaining heirs of the deceased respondent No. 48 mentioned in paragraph 15 of the application be added as respondents in the appeal. Let a note be made that the respondent Nos. 45 and 48 are the heirs of the deceased respondent No. 28. Let the death of the respondent Nos. 21, 27, 32, 33, 36 and 39 be also recorded and after condoning delay and after setting aside abetment, if any, their heirs mentioned in the application be brought on record as respondents. We further make it clear that the order passed on this application would be without prejudice to the right, if any, of the heirs and legal representatives of the aforesaid deceased respondents to raise objection at the final hearing of the appeal. Service of notices of this appeal and the connected Rules upon the substituted respondents be dispensed with in view of the fact that the deceased respondents themselves except the respondent No. 32 did not ultimately contest the suit in the trial court.