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2000 DIGILAW 186 (PAT)

Mahitosh Biswas v. Champa Kumari Sinha

2000-02-03

R.N.PRASAD

body2000
Judgment 1. This M.J.C. application has been filed for re-hearing of Second Appeal No. 200 of 1992 which was disposed of vide judgment dated 16.10.1997. 2. The relevant facts of the case are that the plaintiff-opposite party filed Title Suit No. 10/20 of 1986/90 for eviction of defendant, Dr. Mahendra Nath Biswas, on the ground of default in payment of rent and also on the ground of personal need of the suit premises. The said suit was decreed on contest by the trial court. The defendant filed an appeal against the said judgment and decree and the appeal was allowed and the judgment and decree of the trial court was set aside. The plaintiff-opposite party filed Second Appeal No. 200 of 1992. The said appeal was admitted on 13.5.1993. Since the sole respondent, Dr. Mahendra Nath Bishwas, appeared through counsel, Mr. Chitra Gupta Prasad, no notice was ordered to be issued. During the pendency of the second appeal a petition for substitution of legal heirs of Dr. Mahendra Nath Biswas was filed on the ground that the sole respondent died. The said substitution petition was allowed on 13.5.1994 and his heirs as mentioned in the substitution petition were substituted. An order was passed for issue of notice to the substituted heirs. A petition was also filed that Indu Mati Bishwas, widow of Dr. Mahendra Nath Bishwas and Neelima Bagchi, daughter of Dr. Mahendra Nath Bishwas, the substituted heirs, died and as such prayer was made for substitution of their legal heirs. On 22.6.1994 the appellant in the second appeal filed a substitution petition for substitution of legal heirs of Mahitosh Bishwas, the substituted heir of sole respondent Dr. Mahendra Nath Bishwas, on the ground that he died on 9.3.1994. The said petition was affidavited by the husband of the plaintiff-opposite party. The said petition was allowed on 7.8.1995. On 9.8.1995 order was passed to issue notice to the substituted heirs of Mahitosh Bishwas. Thereafter, Second Appeal No. 200 of 1992 was placed for hearing. The court heard learned counsel for the parties and disposed of the appeal vide judgment dated 16th October, 1997. 3. The present M.J.C. application has been filed by Mahitosh Bishwas, Manobendra Nath Biswas sons of late Dr. Mahendra Nath Bishwas and Smt. Savitri Bishwas, widow of Manotosh Bishwas stating therein that all the heirs of late Dr. The court heard learned counsel for the parties and disposed of the appeal vide judgment dated 16th October, 1997. 3. The present M.J.C. application has been filed by Mahitosh Bishwas, Manobendra Nath Biswas sons of late Dr. Mahendra Nath Bishwas and Smt. Savitri Bishwas, widow of Manotosh Bishwas stating therein that all the heirs of late Dr. Mahendra Nath Bishwas were not substituted and also that Mahitosh Bishwas, petitioner no.1 is not a dead person rather he is alive. The plaintiff-opposite party knowingly and deliberately played fraud upon the court and filed substitution petition for substitution of legal heirs of Mahitosh Bishwas. petitioner no.1, stating therein that he died. Moreover, no notice either of the substituted heirs of Dr. Mahendra Nath Bishwas including petitioner no.1 or the heirs of petitioner no.1 alleged to be dead was ever served, which has caused disposal of the second appeal in their absence. 4. The opposite party filed a petition that the M.J.C. petition is not maintainable as the petitioners have suppressed the material facts. The petitioners had filed Special Leave Petition bearing S.L.P. (Civil) No. D1255/98 before the Supreme Court against the judgment passed in the second appeal which has, been dismissed on 26.10.1998. The said fact has been suppressed and as such the petitioners are not entitled to any relief. 5. A supplementary affidavit has been filed on behalf of the petitioners admitting the fact that cpecial leave petition was filed before the Supreme Court against the judgment of this Court. There was doubt about the party position and as such the records of the case was inspected and it was found that Second Appeal No. 200 of 1992 was placed for hearing without service of notice to the substituted heirs. Learned counsel of the Supreme Court advised the petitioners to file a petition before this Court under Order 41 rule 21 of the C.P.C. for re-hearing of the second appeal in fact, special leave petition was dismissed not on merit rather in default as the counsel did not appear when the case was called out. 6. Learned counsel for the parties argued on the basis of their pleadings. It is evident from the record that in the second appeal Dr. Mahendra Nath Bishwas was the sole respondent. He appeared through counsel Mr. Chitra Gupta Prasad in the appeal. Dr. Mahendra Nath Bishwas died. 6. Learned counsel for the parties argued on the basis of their pleadings. It is evident from the record that in the second appeal Dr. Mahendra Nath Bishwas was the sole respondent. He appeared through counsel Mr. Chitra Gupta Prasad in the appeal. Dr. Mahendra Nath Bishwas died. A substitution petition was filed for substitution of his legal heirs which was allowed. An order was passed for issue of notice to the substituted heirs. Again a substitution petition was filed stating therein that one of the substituted heirs, namely, petitioner no.1 died and as such request was made for substitution of his legal heirs. The said petition was allowed and order was passed for issue of notice. The office without verifying the fact as to whether notices were served on the substituted heirs, placed the case for hearing. Counsel of Dr. Mahendra Nath Bishwas, the sole respondent appeared and argued the case. He also did not point out that the sole respondent died and no notice was served upon the substituted heirs. Counsel for the appellant also did not disclose all these facts and as such the appeal was heard and disposed of. It was pointed out by the learned counsel for the petitioner that, in fact, no notice was served on the substituted heirs of respondent, Dr. Mahendra Nath Bishwas. Moreover, the appellant in second appeal committed fraud upon the court by filing substitution petition for substitution of legal heirs of petitioner no.1, who is still alive and has filed the present M.J.C. petition. Learned counsel for the plaintiff-opposite party could not be able to controvert the submission. The contention of the learned counsel for the petitioners is based on the material on record. In fact, there is nothing in the office note that notice was served on the substituted heirs and the appeal was placed for hearing which was disposed of in absence of the substituted heirs. It further appears from Annexure A to the counter affidavit filed by opposite party that special leave petition was not dismissed on merit rather in default. 7. Thus, on consideration, in my view, it is a fit case for re- hearing of the appeal. Accordingly, this application is allowed. The judgment delivered on 16.10.1997 in Second Appeal No. 200 of 1992 is re-called. 7. Thus, on consideration, in my view, it is a fit case for re- hearing of the appeal. Accordingly, this application is allowed. The judgment delivered on 16.10.1997 in Second Appeal No. 200 of 1992 is re-called. The aforesaid second appeal is restored to its file and be placed for hearing, if it is found that the appeal is ready for hearing.