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2006 DIGILAW 174 (GAU)

Khana Rani Deb v. Ramendra Deb

2006-02-23

AFTAB H.SAIKIA

body2006
JUDGMENT A.H. Saikia, J. 1. Heard Mr. N. Choudhury, learned Counsel for the Petitioners and Mr. N. Dhar, learned Counsel for the Respondents. 2. By means of this revision petition, the Petitioners have challenged the order dated 30.6.2001 passed by the learned District Judge, Karimganj in Misc. (S) Case No. 206 of 1996 refusing to allow the correction of succession petition subsequent to substitution order passed earlier on 7.8.99. 3. The facts, briefly stated; are that Late Matilal Deb, the predecessor-in-interest of the Petitioners who filed the related Misc. Case praying for a Succession Certificate, died on 28.6.98. Though the substitution of the deceased Petitioner by his legal heirs was necessary, but the substitution petition was not made in time and accordingly the present Petitioners moved the trial Court by filing a petition being No. 167/7 dated 26.11.98 praying for substitution as legal heirs in place of the original Petitioner Late Matilal Deb since expired. Since the substitution petition was not effected in time, the suit abated and accordingly, an application was also made for condonation of delay as well as to re-call the abatement order. 4. The trial Court by order dated 7.8.99, on close perusal of those petitions, preferred by the Petitioners for substitution as well as setting aside the abatement order by condoning the delay in question and upon hearing the learned Counsel for the parties, condoned the delay, set aside the abatement and allowed the prayer for substitution. 5. In passing the order dated 7.8.99, the Court directed as under: In consideration of the reason assigned the petition supported by affidavit and for ends of justice the delay caused in making the substitution petition is condoned and the abatement is set aside. Prayer made substitution is allowed. The Petitioners Khela Rani, Mukta Deb and Dipti Deb be substituted as Petitioners in place of deceased Petitioner Matilal Deb. Service of notice on the Petitioners is dismissed with as they have been already entered appearance by way of their, aforesaid. 6. However, despite the order abovementioned, granting substitution, though the Petitioners had taken steps in time, the cause title of the succession petition was not corrected as required by the office of the trial Court and the matter was, in the process, pending for another two years. 6. However, despite the order abovementioned, granting substitution, though the Petitioners had taken steps in time, the cause title of the succession petition was not corrected as required by the office of the trial Court and the matter was, in the process, pending for another two years. Since no correction was made in the cause title incorporating the names of the legal heirs in place of the deceased Petitioner, the Petitioners had no alternative but to approach the Court again by filing a petition being No. 266/4 requesting to pass necessary order allowing the Petitioners to amend/correct the petition in pursuance of the order dated 7.8.99. But the prayer was refused by the impugned order and hence this revision petition. 7. Mr. Choudhury, learned Counsel for the Petitioners assailing the impugned order, has submitted that the Petitioners did not move the Court for any amendment whatsoever under Order 6, Rule 17of Code of Civil Procedure and the petition No. 266/4 was an application only to make correction in the cause title of the petition by entering the names of substituted legal heirs i.e. the Petitioners and there was a bonafide mistake in stating in the said petition that the Petitioners be allowed to amend the petition. Even by order dated 7.8.99, no such amendment order was passed in that case and the Court only allowed the condonation petition for delay and the Petitioners were allowed to be substituted as legal heirs of the deceased Petitioner. 8. It is further contended that after such order of substitution, it was the duty of the office to correct the cause title by incorporating the names of the legal heirs in place of the deceased Petitioner. This was not happened in this case for which they had to approach the Court by making application abovementioned for correction/amendment of the cause title of the petition and it appears from the impugned order that the same petition was dismissed in terms of Order 6, Rule 18 Code of Civil Procedure which was absolutely unwarranted and as such the learned Judge committed grave illegality as well as jurisdictional error in dismissing the petition under the provision of law aforementioned. 9. In support of the impugned order, Mr. 9. In support of the impugned order, Mr. Dhar, Learned Counsel for the Respondents has strenuously argued that the Petitioners misled the Court by making the application being No. 266/4 wherein they themselves stated that they might be allowed to make necessary amendment of the petition in terms of order dated 7.8.99. Therefore, the learned Court was justified in rejecting the application attracting the provisions of Order 6, Rule 18 of Code of Civil Procedure which provides specifically that the amendment shall be effected within fourteen days from the date of the order. 10. I have closely perused the materials available on record including the order dated 7.8.99 as well as the impugned order dated 30.6.2001 along with the application No. 266/4 filed on 29.3.2001. I have also given my thoughtful consideration to the extensive arguments of the learned Counsel canvassed on behalf of the parties. From the perusal of the order dated 7.8.99, it appears that this order was not for amendment; rather by this order, the prayer for substitution was allowed by condoning the delay in preferring the petition and setting aside the abatement. Once the substitution is allowed, necessary correction for cause title by incorporating the names of the legal heirs of the deceased Petitioner needs to be done by the office. But in the instant case, that was not done. Even the Petitioners were compelled to file petition for such correction incorporating the names of the Petitioners, being the legal heirs of the deceased Petitioner. In the contents of the petition though they stated the word 'amend the petition', that did not mean that amendment was sought for under Order 6, Rule 17 Code of Civil Procedure. There was no whisper in the order dated 7.8.98 that the same was passed allowing for any amendment as such. That being so, the rejection of the petition filed by the Petitioners on the ground that it was hit by Order 6 Rule 18 of Code of Civil Procedure was wholly illegal and cannot be sustained in law. 11. This Court in a case of Md. Safi Ahmed and Ors. v. On the death of Abdul Mazid his legal heirs Abdul Matin and Ors. 11. This Court in a case of Md. Safi Ahmed and Ors. v. On the death of Abdul Mazid his legal heirs Abdul Matin and Ors. reported in (1993) (1) G.L.R. 245 held in paragraph-7 as under: The only order that is necessary after death of a person is the order for substitution of legal heirs and correction of the memo of appeal or the plaint is ministerial act and that is has to be done by the office. The Plaintiffs or Defendants who are parties in a suit have nothing to do after the order is passed. If the prayer for substitution is granted even in appeal or any interlocutory matters, such substitution is good for all other parts of the proceeding in the suit and in other words, after substitution is allowed the memo of appeal, the pleadings and the decree shall have to be corrected by the office and such correction, is not a judicial function. Merely because, this ministerial part has not been performed it cannot be said that the suit has abated. In the case in hand, one added point in favour of the opposite parties is that there was direction given by this Court to correct the memo of appeal but unfortunately it was not done, for which the Plaintiffs cannot be held responsible. My attention has been drawn to the fact that the memo of appeal before this Court was subsequently corrected. 12. Having regard to the above judicial authority and taking into account the facts and circumstances of the case in its totally, this Court unhesitantly holds that correction of any plaint, petition or memo of appeal is a ministerial act and the same has to be effected by the office only and in view of the same, the impugned judgment deserves to be interfered with and accordingly impugned order is set aside and quashed. 13. Since the correction is to be made by the office, being a ministerial function, the learned District Judge is directed to direct his office to correct the cause title of the related petition by incorporating the names of the Petitioners therein, being the legal heirs of the deceased Petitioners. 14. In the result, the revision petition is allowed. No costs. Petition allowed