Research › Search › Judgment

Calcutta High Court · body

2008 DIGILAW 683 (CAL)

Arijit Mittra v. Goutam Mitter

2008-07-14

BISWANATH SOMADDER

body2008
ORDER :- Heard the learned advocates appearing on behalf of the parties. 2. This is an application under Article 227 of the Constitution of India primarily directed against an order, being Order No. 83, dated 28th February, 2008, passed by the 4th Civil Judge (Senior Division) at Alipore, South 24 Parganas in Title Suit No. 144 of 1997. 3. The petitioner herein is the substituted defendant No. 1(b) in the suit pending in the Court below. 4. From the record it appears that the plaintiff filed an application before the learned Court below under Section 151 of the Code of Civil Procedure, praying for rejection of the application of the substituted defendant. The substituted defendant, in his application, had inter alia prayed for time to file written statement and for an early date for further hearing of the suit. 5. It further appears from record that an objection to the said application under Section 151 of the Code of Civil Procedure was filed by the substituted defendant No. 1(b) wherein it was inter alia stated in paragraph 5 as follows :- "With reference to the statements, made in paragraphs 1, 2 and 3 of the said petition, your petitioners state that the defendant Nos. 1(a) to 1(c) have every right to put in such facts which are the subsequent events and merit consideration by this Learned Court and, therefore, contention raised by the plaintiff that such defendants would be bound by the written statement filed by the deceased defendant No. 1 would not be correct proposition of law. Even if it is accepted that the contention raised by the deceased defendant No. 1 needs to be considered in its true perspective, it does not mean that matters which have grown up subsequently cannot be put on record." 6. The learned Court below while allowing the plaintiffs application and upholding his contention was inter alia pleased to observe as follows :- "It is needless to mention here that the present defendant. No. 1(b) has stepped into shoes of the original defendant No. 1 and thus he cannot be permitted to throw out the case of the original defendant No. 1. Not only that he is bound by the statements made by the defendant No. 1 in his W.S. Be it mentioned here that subsequent events can be brought before this Court by way of amendment if other conditions are fulfilled. Not only that he is bound by the statements made by the defendant No. 1 in his W.S. Be it mentioned here that subsequent events can be brought before this Court by way of amendment if other conditions are fulfilled. But for bringing the subsequent events no one can be permitted to file W.S. afresh. Considering all these aspects I am of the humble view that the defendant No. 1(b) cannot and should not be permitted to file W.S. Thus the instant petition should be allowed. Hence, it is ordered, that the petition dated 16-5-2007 filed by the plaintiff u/S. 151 of the CPC is allowed on contest but without costs. To 19-3-2008 for further hearing." 7. The main issue in the present application of the substituted defendant No. 1(b), being the petitioner herein, is that the learned Court below, by virtue of the order impugned was pleased to deny him his right to file a written statement and thereby compromising with the principles of natural justice. 8. From the record of the case, it appears that the original defendant had already filed a written statement. This is a matter of fact and is not disputed by the petitioner herein, being one of the substituted defendants. Whether the substituted defendant can be permitted to file another written statement, in addition to the written statement already on record, is the question that is required to be decided in the instant case. A substituted defendant merely steps into the shoes of the original defendant, unlike a person who is added as a party to a suit by virtue of an order passed by the Court under Order 1, Rule 10(2) of the Code of Civil Procedure. The provisions of Order 22, Rule 4 and Order 1, Rule 10(2) of the Code of Civil Procedure are fundamentally different. While in the case of former, the substituted defendant merely steps into the shoes of the original defendant, in the case of latter, the Court adds a person as a party whose presence before the Court may be necessary in order to enable the Court effectually and completely adjudicate upon and settle all the questions involved in the suit. While in the case of former, the substituted defendant merely steps into the shoes of the original defendant, in the case of latter, the Court adds a person as a party whose presence before the Court may be necessary in order to enable the Court effectually and completely adjudicate upon and settle all the questions involved in the suit. While the provision of Order 22, Rule 4 of the Code of Civil Procedure can be invoked as a matter of right by the legal representative/representatives of the deceased defendant, the provision of Order 1, Rule 10(2) of the Code of Civil Procedure is essentially discretionary in nature and the Court does not add a person as a party to a proceeding on his mere asking. 9. The above discussion, carves out in some detail, the fundamental difference between the two aforementioned provisions of law. In the instant case, the substituted defendant entered into the picture as one of the legal representatives of the deceased original defendant. He never entered the litigation with an independent right to file a written statement, on being added as a party to the suit under Order 1, Rule 10(2) of the Code of Civil Procedure. No application was ever filed by the substituted defendant No. 1 (b) for amendment of the written statement filed by the original defendant before the learned Court below. It was, therefore, quite natural for the learned Court below to have held that the substituted defendant No. 1 (b) cannot and should not be permitted to file fresh written statement. There is no ambiguity or infirmity in the order impugned. 10. I am of the opinion that in the facts and circumstances of the instant case and for reasons stated above, the instant application of the petitioner is liable to be dismissed and the same is hereby dismissed. 11. Learned advocates for the parties, however, pray for an appropriate direction upon the learned Court below, so that the pending suit may be disposed of expeditiously. Accordingly, I direct the learned Court below to hear out and dispose of the suit, being Title Suit No. 144 of 1997, which is pending almost eleven years, as expeditiously as possible, preferably within a period of twelve months, but not later than fourteen months from date of communication of this order, without granting unnecessary adjournments to any of the parties. The time-frame, indicated above, is peremptory in nature and shall not be extended by the learned Court below, even on consent. 12. Urgent xerox certified copy of this order, if applied for, be given to the parties. Order accordingly.