Research › Search › Judgment

Patna High Court · body

2007 DIGILAW 1385 (PAT)

Kabita Sen v. Kanak Lata Chaudhary

2007-08-21

J.N.BHATT, KISHORE K.MANDAL

body2007
Judgment J.N.Bhatt, J. 1. By this Letters Patent Appeal under clause 10 of the Letters Patent of the Patna High Court, the appellants have questioned and assailed the legality and validity of the judgment of the learned Single Judge, dated 13th July, 1993, in F.A. No. 82 of 1976, which was filed against the judgment and decree, dated 23.9.1975, recorded by Shri K.D. Sharma, 7th Additional Subordinate Judge, Bhagalpur, in T.S. No.107 of 1969. By the impugned judgment, the learned Single Judge dismissed the First Appeal and affirmed the decree of the trial court dismissing the suit of the appellant-original plaintiff. That is how, this Letters Patent Appeal has come for our consideration and adjudication. 2. We have heard the learned counsel for the parties and have examined the record including the judgment of the trial court, as well as, that of the appellate Court. The material facts giving rise to this Letters Patent Appeal may be highlighted at this juncture so as to appreciate the merits of the appeal and challenge against it. 3. The appellant herein was the appellant in the First Appeal and the plaintiffs in the suit. The suit was filed for specific performance of oral agreement to sell the suit property which is measuring 22086 sq.ft. of land with a pucca house and trees standing thereon in the town of Bhagalpur. 4. According to the original plaintiff, appellant herein, the original defendant, since dead, and represented by legal heirs, had agreed to sell the disputed property for a consideration of Rs. 55,000/- besides Rs. 1520/-, being the amount of arrear rent due from the tenants in occupation of the house. As per the case of the original plaintiff, he performed his part of contract but the defendants refused to perform their part of the contract and execute the sale deed as the defendants contended that there was no concluded contract. The suit was dismissed. The appeal was also dismissed and, therefore, this Letters Patent Appeal. 5. The suit was dismissed holding that the original defendant had failed to prove the existence of any agreement to sell between the parties which may be enforced under the law. In short, the plaintiff failed to prove his entitlement by proving the concluded contract for sale. 6. We would like to take up the issue of abatement at this juncture, because it goes to the root of the matter. In short, the plaintiff failed to prove his entitlement by proving the concluded contract for sale. 6. We would like to take up the issue of abatement at this juncture, because it goes to the root of the matter. 7. There is no dispute about the fact that original respondent no. 3 Subhendu Roy Chaudhary, one of the sons of the original defendant, passed away on 17.2.1992 during the pendency of the First Appeal leaving behind two sons and a daughter and a widow. Admittedly, the original plaintiff or the appellant in the First Appeal, did not take any step for substitution of the heirs of deceased Shubhendu Roy Chaudhary, not only within time, but till this date, even after a copy of the affidavit to that effect was served on the counsel on 28.6.1993. Even during the course of hearing, on being asked, it was specifically mentioned that there is no move or application for substitution of the heir of original respondent no. 3, Subhendu Roy Choudhary. 8. It is, unfortunately, not comprehended by us as to why, thus far, no attempt has been made to bring the legal heirs of the deceased Subhendu Roy Chaudhary, on record, or no proceeding for substitution came to be initiated, as well as, for setting aside the abatement of the proceeding on account of non-substitution of the heirs of the original respondent no. 3, Shubhendu Roy Choudhary. 9. This Letters Patent Appeal was heard two days before and this point was agitated on behalf of the respondents. Even today, while taking this matter for oral dictation, we again enquired as to any move has been made thus far for substitution of the heirs of respondent no. 3, Shubhendu Roy Choudhary, and we are informed that no steps for substitution is taken, and for setting aside the abatement on account of delay in bringing the heirs of the said Shubhendu Roy Choudhary on record in terms of the provisions of the Code of Civil Procedure, 1908. 10. Let it be mentioned that this is a matter where specific performance of oral agreement to sell is involved. 10. Let it be mentioned that this is a matter where specific performance of oral agreement to sell is involved. Ordinarily, when the estate is sufficiently represented by other heirs, then in that case, in certain cases, the question of abatement may not assume any importance but the question on hand, which we are dealing, appertains to claim for specific performance of oral agreement to sell of immovable property. The claim in the plaint has been to get specific performance of the so-called concluded contract to sell the immovable property. It is in these contexts, the view taken by the learned Single Judge that the appeal has abated as a whole by reason of non-substitution of the heirs of the said deceased respondent no. 3, Subhendu Roy Chaudhary, could not be shown to be unjustified, unreasonable, or illegal. We also find that on account of the non-substitution of the heirs of the necessary party in proceeding like one on hand, the proceeding shall abate and, therefore, this Letters Patent Appeal can be dismissed on this ground only. Since this issue goes to the root of the matter, it would not be necessary for us to divulge on other points and submissions raised before us in course of hearing. 11. Accordingly, this appeal shall stand dismissed. No costs.