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2011 DIGILAW 1449 (CAL)

Sabitri Rana v. Mousumi Pramanik

2011-11-28

MD.ABDUL GHANI

body2011
JUDGMENT 1. THE present application under Article 227 of the Constitution of India is directed against the order No. 23 dated 16.9.2010, passed by the learned Civil Judge (Junior Division), Bishnupur, in Title Suit No. 16 of 2009. 2. HAVING heard the learned Counsel of both the parties and also after going through the materials-on-record it could be detected that one Shrimati Purabi Rana, since deceased, filed the aforesaid Title Suit No. 16 of 2009 in the Court below praying for declaration, injunction and some other consequential reliefs. In the said suit plaintiff, aforesaid Purabi Rana, since deceased, claimed herself to be the legally married wife of late Shankar Chandra Rana who was an employee posted under Executive Engineering Kangshabati Channals and also claimed for retiral benefits as wife of aforesaid deceased employee. Shankar Chandra Rana died-in-harness in 2008 and the suit was filed in 2009, plaintiff's marriage with Shankar Chandra Rana was solemnized on 13.12.1979 and during her marriage tie with said Shankar .she gave birth to 7 (seven) daughters. In the said suit, present petitioner as defendant No. 1 also claimed herself to be the legally married wife of said deceased Shankar Chandra Rana and also claimed absolute retiral benefits of said Shankar Chandra Rana. During the pendency of the suit plaintiff Purabi Rana died leaving behind her daughters (opposite parties) as legal heirs. There after, the surviving legal heirs of deceased plaintiff by filing a petition under Order 22 Rule 3 and Section 151 of CPC before the learned Court below prayed to be substituted. It would be explicit from the materials-on-record that the learned Court below upon hearing the learned Counsel of both sides and also considering the position of law allowed the said application. Being aggrieved by and dissatisfied with the impugned order the petitioner/defendant No. 1 Shabitri Rana has come up before this Court praying for setting aside the impugned order. 3. MS. N. Das, learned Counsel appearing for the petitioner while making submission contends that the impugned order is not tenable under the law inasmuch as with the demise of the sole plaintiff the suit stood abated. 3. MS. N. Das, learned Counsel appearing for the petitioner while making submission contends that the impugned order is not tenable under the law inasmuch as with the demise of the sole plaintiff the suit stood abated. In support of his contention he relies upon the decision reported in 2010 Volume 4 CHN (Cal) 1018 (Basudeb Dey v. Swati Dey and Ors.) as also the decision reported in 2006 (1) CLJ (Cal) 204 (Sri Samir Nath Bhattacharya v. Smt. Sandhya Bhattacharjee and Ors.) and emphatically urges that in view of the existing circumstances of the case as also the observations contained in the decision referred to above, the learned Court below ought to have not allowed the application under Order 22 Rule 3 C.P.C. On the other hand, MS. M. Maity, learned Counsel appearing for the opposite parties at the beginning of her argument draws this Court's attention to the contents of the impugned order as also the other materials-on-record including the contents of the plaint of Suit No. 16/ 2009 and strongly urges that learned Court below while passing the order committed no mistake or illegality and as such the order impugned can be said to be justifiable in the eye and estimation of law and the same needs no interference by any Court of law. In support of her contention she relies upon a ruling reported in 1996 (2) Supreme Court Cases 205 (Puran Singh and Ors. v. State of Punjab and Ors.) and submits that in view of the principles laid down in the said ruling the impugned order cannot be called in question in as much as with the demise of the sole plaintiff the right to sue devolves upon her legal heirs. 4. IN view of the principles of the ruling learned Court below did not commit any mistake in allowing the application under Order 22 Rule 3 read with Section 151 C.P.C. The main principles of the ruling reported in 1996 (2) SCC 205 (Puran Singh and Ors. v. State of Punjab and Ors.) may be set out below:- "A personal action dies with the death of the person on the maxim actio personalis mortiur cum persona. v. State of Punjab and Ors.) may be set out below:- "A personal action dies with the death of the person on the maxim actio personalis mortiur cum persona. But this operates only in a limited class of actions ex delicto, such as action for damages for defamation, assault or other personal injuries not causing the death of the party, and in other actions where after the death of the party the granting of the relief would be nugatory. But there are other cases where the right to sue survives in spite of the death of the person against whom the proceeding had been initiated and such right continues to exist against the legal representative of the deceased who was a party to the proceeding. Order 22 of the Code deals with this aspect of the matter. Rule 1 of Order 22 says that the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives. That is why whenever a party to a suit dies, the first question which is to be decided is as to whether the right to sue survives or not. If the right is held to be a personal right which is extinguished with the death of the person concerned and does not devolve on the legal representatives or successors, then it is an end of the suit. Such suit, therefore, cannot be continued. But if the right to sue survives against the legal representative of the original defendant, then procedures have been prescribed in Order 22 to bring the legal representative on record within the time prescribed." Similar views have been embodied in the decision reported in 2010 Volume 4 CHN Cal 1018. In the instant case the aforesaid decision reported in 2006 (1) CLJ (Cal) 204 has got no manner of application as because in the said case substitution of the legal heirs of a nominee was involved. In such a case right to sue ends with the death of the nominee. 5. BUT in the case in hand right to sue cannot die with the death of the plaintiff simply because with the death of the plaintiff, her legal heirs become entitle to acquire the property and interest left by deceased plaintiff as also her deceased husband. 6. 5. BUT in the case in hand right to sue cannot die with the death of the plaintiff simply because with the death of the plaintiff, her legal heirs become entitle to acquire the property and interest left by deceased plaintiff as also her deceased husband. 6. THEREFORE, having heard the submission of the learned Counsel of both the parties and also going through the materials-on-record as also regard being had to the principles of the ruling relied upon by the parties concerned as well as considering the position of law, I find reasons to understand and believe that the submission made on behalf of the opposite party has got sufficient force and merit and accordingly the instant revisional application can be said to have no leg to stand upon and the same deserves dismissal. Resultantly, the application fails and the same is dismissed with no order as to costs. Let xerox certified copy of this order, if applied for, be given to the learned Advocates appearing for the parties expeditiously. S. B.