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2010 DIGILAW 756 (CAL)

Sabita Bandhapadhyaya v. Biswanath Banerjee

2010-07-07

KANCHAN CHAKRABORTY

body2010
Judgment :- Kanchan Chakraborty, J: The revision application under Article 227 of the Constitution of India is filed by Smt. Sabita Bandyopadhyaya and others chellanging the correctness, legality, propriety of the order no. 129 dated 12.6.2006 passed by Sri S. Seal, learned Civil Judge, Junior Division, 7th Court, Serampore in Title Suit No. 363 of 1996. Smt. Sabita Bandyopadhyaya and others (hereinafter referred to as petitioners) filed the Title Suit No. 363 of 1996 against Biswanath Banerjee and others as principal defendants and one Raghunath Banerjee as pro-forma defendant praying for declaration of title, recovery of possession and injunction. Biswanath Banerjee, defendant no. 1 died on 6.2.2004 leaving behind him the defendant no. 2 to 6 and 7 others. The petitioner filed an application under Order 22, Rule 4 read with Rule 9 and Section 151 of C.P. Code praying for substitution of the deceased defendant Biswanath Banerjee and pro-forma defendant Raghunath Banerjee in the learned Court. That petition was filed, as it appears therefrom, within 90 days from the date of death of Biswanath Banerjee but after the period of 90 days from the date of death of Raghunath Banerjee, the proforma defendant. The petitioners/plaintiffs prayed for setting aside of abatement of the suit in respect of pro-forma defendant Raghunath Banerjee as they could not filed the petition for substitution within the period of 90 days from his death. Vide order no. 129 dated 12.6.2006, the learned Court found the petition not maintainable especially for the purpose of substitution in respect of pro-forma defendant and that no prayer for condonation of delay was sought for. The learned Court came to a conclusion that there could not be two prayers in a single petition. Being dissatisfied with and aggrieved by the said order, the petitioners have filed this petition praying for setting aside the order under challenge. The Point to be decided in this revision application is whether the order under challenge is correct, legal and sustainable in law? Learned Counsel appearing on behalf of the petitioners contended that a petition containing more than one prayer can not be rejected merely on that ground for the sake of dispensation of substantial justice. The Point to be decided in this revision application is whether the order under challenge is correct, legal and sustainable in law? Learned Counsel appearing on behalf of the petitioners contended that a petition containing more than one prayer can not be rejected merely on that ground for the sake of dispensation of substantial justice. It has further been contended by the learned Counsel appearing on behalf of the petitioners that the learned Court erred in not allowing the prayer for substitution in respect of legal heirs in the event of death of Biswanath Banerjee in as much as prayer for substitution was made within period of 90 days from the date of his death. It has further been contended by him that since Raghunath Banerjee, the pro-forma defendant did not contest the suit there can not be abatement of the suit for failure to implead the representatives of such a deceased pro-forma defendant. I have carefully gone through the order under challenge and it appears to me that the learned Trial Court approached the entire matter in a manner which is not inconsonance with the settled principles of law. It is true that the petition filed by the petitioners in the learned Court contained more than one prayer. But, that can not be a ground for rejecting the prayer when the prayer for Substitution in respect of deceased Biswanath Banerjee was made within time and the suit was not supposed to be abated due to death of Biswanath Banerjee, the non-contesting pro-forma defendant. Function of the Court is to see that substantial justice to the parties is done and for that matter, technicalities should not come in the way in giving substantial justice. If the petition of the petitioners is read as a whole, it will appear that they had no idea or information about the death of Raghunath Banerjee, the proforma defendant as he had been living elsewhere. The petitioners made it clear in that petition in paragraph 7 that the suit could not be abated as against Raghunath Banerjee for non-substitution of his legal heirs on his death in time because he was a pro-forma defendant and was not contesting the suit. The learned Court was oblivious of the fact that failure on the part of the petitioner to pray for substitution of the legal heirs of Raghunath Banerjee was not resulted in abatement of the suit. The learned Court was oblivious of the fact that failure on the part of the petitioner to pray for substitution of the legal heirs of Raghunath Banerjee was not resulted in abatement of the suit. Having considered the entire facts and circumstances, it appears to me that the reasons assigned by the learned Court for rejecting the prayer under order 22 Rule 4 C.P.C. are not justified and acceptable. Legal right can not be defeated on technical fault on the part of a party to the suit. In view of the facts above the order under challenge is interfered with in this revision application. The order no.129 dated 12.6.2006 in Title Suit No. 363 of 1996 is set aside. The prayer for Substitution is allowed. Learned Trial Court is directed to make necessary entries in the Cause Title of the plaint and give opportunity to the substituted defendants to file written statement after serving notice. No order as to costs. The revision application is, thus, disposed of.