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1994 DIGILAW 93 (CAL)

Shyam Sundar Mundra v. Haraprosad Mukherji

1994-03-15

ASOKE KUMAR CHAKRAVARTY

body1994
JUDGMENT This revisional application is directed against Order No. 29 dated 17th March, 1993 passed by the learned Second Bench of the City Civil Court at Calcutta in Title Suit No. 897 of 1990. 2. The facts necessary for the purpose of this revisional application are as follows:– The plaintiff filed the suit against the predecessor-in-interest of the present petitioner for termination of the lease which had expired due to efflux of time. During the pendency of the suit, the original lessee, i. e, the predecessor-in-interest of the present petitioner, died On 31.12.91, and the fact of such death of the sole defendant in that suit was brought to the notice of the learned Advocate for the opposite party by the learned Advocate for the deceased defendant under Order 22 Rule 10(a) of the Code of Civil Procedure on 9.1.92. The Court, by its order dated 9.1.92, directed the landlord–opposite party to take necessary steps in the matter. By the impugned order No. 29 dated 17.9.93 the application filed by the opposite party-landlord under order 22 Rule 4 of the Code of Civil Procedure on 1.3.93 was allowed by the learned. Trial Judge on the ground that the petitioner has appeared before the Court in response to the publication made in the newspaper "'The Statesman" on 9.8.92. 3. Mr. D.K. Dhar, learned Advocate for the petitioner, submits that the learned trial Judge acted beyond his jurisdiction in allowing the application under Order 22 Rule 4 of the Code of Civil Procedure inasmuch as he did not take into consideration that the suit had already abated on the expiry of the three months after the death of the original defendant, who, admittedly died on 31.12.91. He also pointed out that no step having been taking also under Order 22 Rule 9 of the Code of Civil Procedure for setting aside the abatement of the orders passed by the learned trial Judge after the expiry of the time for filing the application for abatement was illegal and is of no effect. He further contended that no doubt his client appeared before the Court by filing Vakalatnama and asking the plaintiff to supply a copy of the plaint as will appear from Order 22 dated 14.9.92. He further contended that no doubt his client appeared before the Court by filing Vakalatnama and asking the plaintiff to supply a copy of the plaint as will appear from Order 22 dated 14.9.92. But that conduct, according to him, shall not enure to any benefit to the opposite party-landlord in view of the fact that the suit having already abated on the expiry of 31.3.92 the question of subsequent appearance by the petitioners does not change the position in any way. The learned Advocate for the petitioner further contended that the petitioner under Order 22 Rule 4 of the Code of Civil Procedure cannot also be considered as a petition under Order 22 Rule 4 C.P. Code in the facts and circumstances of the case. 4. Mr. A.K. Chatterji, learned Advocate for the opposite party, however, contended that the abatement does not necessarily mean that the suit became nonest after the expiry of the period of filing the application for substitution of the deceased defendant. According to him, the suit still remains and the Court is empowered to pass necessary orders in this matter. He also contended that the petitioner having made his personal appearance before the Court it was a mere formality for getting his name substituted and the learned trial Judge rightly allowed the petition under Order 22 Rule 4 of the C.P. Code treating the same as an application for setting aside the abatement. 5. Mr. Chatterji also referred to the ruling, reported in (1) AIR 1986 Punjab and Haryana 93. Lal Singh v. Gurnam Singh & Ors., and also the decision, reported in (2) AIR 1961 Andhra Pradesh 113. 6. Heard the learned Advocates of both sides. Under sub-rule (3) of Rule 4 of order 22 of the Code of Civil Procedure it will appear that where within the time limited by law no application is made under Sub-rule (1) for bringing the legal representatives of the sole surviving deceased defendant on record the suit shall abate against the deceased defendant. There may not be any formal order, but the suit shall abate due to operation of law and thereunder an application under order 22 Rule 9 C.P. Code may be filed for setting aside the abatement order. But, here in this case nothing was done. There may not be any formal order, but the suit shall abate due to operation of law and thereunder an application under order 22 Rule 9 C.P. Code may be filed for setting aside the abatement order. But, here in this case nothing was done. It will appear from the ordersheet that though the Court allowed the plaintiff to take steps twice within the prescribed time still not steps were taken by the opposite party for which the suit abated on the expiry of 31st March, 1992 and upon the expiry of the said date no application for setting the abatement was filed and it appears that long thereafter, i.e. on 1st March, 1993 an application for substituting the legal representatives of the deceased was filed who appeared before the Court in pursuance of the publication made in the newspaper “The Statesman”. The suit having abated after three months from the date of the death of the sole defendant all the subsequent orders passed by the Court could not have any effect. It may be title that the opposite party made his appearance before the Court on a subsequent date, but it will not enure to any benefit to the opposite party as the suit itself had abated in the meantime. The rulings referred to by the learned Advocate for the opposite party have an application in the facts of the present case. Rather, it appears from the reported decision in (3) AIR 1930 Calcutta 422 that application for substitution could not be treated as one for setting aside abatement. 7. In the aforesaid view of the matter the jurisdictional error seems to have been committed by the learned trial Judge in allowing the application for amendment. The order accordingly cannot stand. The order No. 29 dated 17.3.93 passed by the learned Second Judge is, accordingly, set aside. The revisional application is, thus allowed. There will be no order as to costs. Xerox copy of this order may be giving to the learned Advocates for both the parties on usual terms.