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2011 DIGILAW 411 (CAL)

Goutam Choudhury v. Gora Chand Nandy

2011-03-22

DIPANKAR DATTA

body2011
JUDGMENT : 1. Ejectment Suit No.441 of 2002 was instituted by the predecessor-in-interest of the opposite parties 1 to 4 herein for eviction of the original tenant, Sri Bibhuti Bhusan Banerjee and recovery of khas possession of the suit premises. One of the grounds on which eviction of the original tenant was sought is that he had sublet the suit premises in favour of one Ramdas Choudhury (since deceased). On the death of Bibhuti Bhusan Banerjee, his legal heirs were substituted as defendants. The heirs of late Ramdas Choudhury applied for being added as defendants. Their prayer was allowed and they have been contesting the suit. 2. During progress of the suit, defendant no.1 Smt. Aruna Banerjee died on July 3, 2007 while the defendant no.2 Sri Sekhar Banerjee died on July 18, 2004. The plaintiffs, being the opposite parties 1 to 4 herein, filed an application before the trial Court under Order 1 Rule 10, Code of Civil Procedure (hereafter the Code) alleging that the interest of the defendants 1 and 2 devolved on defendants 3 to 5 who were already on record and, accordingly, a prayer was made for deleting the names of defendants 1 and 2 from the cause title of the plaint. Written objection thereto was filed on behalf of the added defendants, being the petitioners herein. It was claimed therein that the defendant no.1, Smt. Aruna Banerjee died leaving behind her two sons and three daughters as her legal heirs who had not been brought on record and, therefore, the suit must be held to have abated partially. 3. Upon considering the application and the written objection, the trial Court by order No.116 dated March 20, 2010 held as follows : “On careful perusal of the materials on record, it reveals that the averments made in the application by the plaintiff u/o 1 Rule 10 impleading the defendant No.6 to defendant No.10 and the information about the death of defendant no.1 as per written examination in chief of defendant No.8 are correct. Regarding the date of death, the defendant No.8 has not given any specific objection, nor the defendant has stated as to who are the legal heirs of the deceased defendant No.1 who are being left out. Moreover, the defendant had not raised any objection regarding defendant No.2’s death or substitution of anybody in his place. Regarding the date of death, the defendant No.8 has not given any specific objection, nor the defendant has stated as to who are the legal heirs of the deceased defendant No.1 who are being left out. Moreover, the defendant had not raised any objection regarding defendant No.2’s death or substitution of anybody in his place. In that circumstances, this Court finds that the prayer of the plaintiff is justified and bonafide. Hence, it is ordered. That the application u/o-1 Rule 10 filed by the plaintiff on 8/3/2010 is hereby allowed on contest but without cost. The names of defendant No.1 & 2 are to be deleted from the cause title of the plaint. Note in the register, D.C. to do the needful, to 09.04.2010 for evidence of the defendant.” The defendants in the suit did not challenge the aforesaid order dated March 20, 2010 and consequently, the same attained finality. 4. On December 13, 2010 the added defendants filed two applications. The first one was an application under Order XXII Rule 4(3) of the Code while the other one was an application under Section 151 of the Code. 5. On December 20, 2010, the plaintiffs had also filed an application. It was claimed therein that upon the death of the defendant no.2, the application filed by the plaintiffs for deleting his name was allowed and, therefore, an order may be passed to the effect that there is no necessity to add and/or substitute the legal heirs of the deceased defendant no.2. 6. All the three applications, as aforesaid, were considered by the trial Court on January 31, 2011 and disposed of by a common order dated February 1, 2011. The trial Court examined the records and came to a conclusion that though the defendants 1 to 5 had entered appearance and on several occasions had prayed for time to file written statement, ultimately, no written statement was filed by them resulting in an order being passed that the suit shall proceed ex parte against them. In view of Order XXII Rule 4(4) of the Code, the trial Court exempted the plaintiffs from the necessity of substituting the legal representatives of the deceased defendants 1 and 2 since during their lifetime they had failed to file their written statement. In view of Order XXII Rule 4(4) of the Code, the trial Court exempted the plaintiffs from the necessity of substituting the legal representatives of the deceased defendants 1 and 2 since during their lifetime they had failed to file their written statement. The trial Court was also of the view that nothing of importance surfaced from the applications filed by the added defendants for substitution of the representatives of the defendants 1 and 2 and proceeded to reject the same on contest. Simultaneously, the application filed by the plaintiffs was allowed and they were permitted to proceed with the suit without substituting the legal representatives of defendants 1 and 2 (since deceased) in view of Order XXII Rule 4(4) of the Code. This order dated February 1, 2011 is under challenge in this application under Article 227 of the Constitution. 7. Mr. Das, learned advocate appearing for the added defendants/petitioners contended that the trial Court erred in not holding that the suit had partially abated for not bringing on record the legal representatives of the defendants 1 and 2. According to him, non-filing of written statement by the defendants 1 and 2 ought not to have been construed as sufficient reason to direct that the suit may proceed in the absence of their legal representatives. He argued that even though a party may not have filed his written statement, such party could participate in the final hearing of the suit and have the witness on behalf of the plaintiff cross-examined. It was also contended that in the circumstances, the plaintiffs ought to have filed an application for substitution together with an application for condonation of delay, instead of an application praying for exemption. The decision reported in AIR 1962 SC 89 (State of Punjab vs. Nathu Ram) was cited to contend that the suit could not proceed in the absence of the legal representatives of the deceased defendants 1 and 2. He, accordingly, prayed for setting aside of the order impugned. 8. Mr. Banerjee, learned advocate appearing for the plaintiff/opposite parties while referring to the incidents that have since taken place after institution of the suit contended that the trial Court did not commit any illegality or did not act with material irregularity in passing the impugned order. He, accordingly, prayed for setting aside of the order impugned. 8. Mr. Banerjee, learned advocate appearing for the plaintiff/opposite parties while referring to the incidents that have since taken place after institution of the suit contended that the trial Court did not commit any illegality or did not act with material irregularity in passing the impugned order. According to him, the address of the suit premises is 99A, Bidhan Sarani, Police Station -Shyam Pukur, Kolkata 700004 wherein, the said Bibhuti Bhusan Banerjee was inducted as the tenant. The fact that the original defendant (being the tenant) had sublet the suit premises to third parties would be evident from the fact that summonses were served on the legal representatives of the original defendant, being defendants 1 to 5, at 159, B.K. Paul Avenue, Police Station - Shyampukur, Kolkata 700004. It was further contended that carriage of proceedings lies with the plaintiffs and it is at their own risk that they shall proceed with the suit. He particularly referred to the stage the suit had reached, - evidence of the parties had been closed and the suit was posted for arguments and even then the original defendants did not participate in the hearing of the suit. Reliance was placed by him on the decision reported in (2003) 1 SCC 476 (Zahirul Islam vs. Mohd. Usman & ors.), wherein it was held, on consideration of sub rule 4 of Rule 4 of Order XXII, that the plaintiff must seek permission of the Court for exemption and unless such permission is obtained, the legal representative of the deceased defendants are entitled to be brought on record. He contended that exemption as prayed for had been granted in accordance with law and there being no application from any of the legal representatives of the deceased defendants 1 and 2 for being brought on record, the added defendants had no right in law to contend that the suit has abated as against the defendants 1 and 2. He, accordingly, prayed for dismissal of the application. 9. I have heard learned advocates for the parties and considered the materials placed on record. 10. He, accordingly, prayed for dismissal of the application. 9. I have heard learned advocates for the parties and considered the materials placed on record. 10. It appears from the application under Order XXII Rule 4(3) filed by the added defendants/petitioners accompanied by an affidavit of the defendant no.8/petitioner no.2 that it was claimed therein that the defendant no.2 had died leaving behind him his widow and two daughters and that the plaintiffs intentionally neglected to take steps under Order XXII Rule 4(3) of the Code; therefore, an order ought to be passed that the suit stood abated. In the other application under Section 151, verified by the selfsame defendant no.8/petitioner no.2, it was averred that inadvertently it was mentioned in the previous application that the defendant no.2 had left behind him, inter alia, a daughter by the name of Anamika Banerjee. Accordingly, a prayer was made for deletion of such name. These two applications have been dismissed by the order under challenge. It has now to be examined as to whether the trial Court, on facts and in the circumstances, committed such an error leading to gross miscarriage of justice that the High Court’s power under Article 227 would be called for to set things right. 11. Order XXII Rule 4(4) of the Code reads as follows: “4(4) The Court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place.” 12. The said provision was rightly applied by the trial Court in the light of the attending facts i.e. the substituted defendants 1 to 5 had entered appearance in the suit and sought for time on several occasions to file written statement, yet, no written statement was filed. The said provision was rightly applied by the trial Court in the light of the attending facts i.e. the substituted defendants 1 to 5 had entered appearance in the suit and sought for time on several occasions to file written statement, yet, no written statement was filed. With the order dated March 20, 2010 passed on contest permitting the plaintiffs to delete particulars of the deceased defendants 1 and 2 without they (plaintiffs) being under an obligation to bring the legal representatives of the deceased defendants 1 and 2 on record and thereafter by grant of exemption under Order 22 Rule 22(4) of the Code, the stage of proceedings reached in the suit could not have been unsettled by allowing the applications filed by the added defendants/petitioners, more so when the order dated March 20, 2010 was not challenged by the added defendants as noticed above, thereby allowing it to attain finality. 13. It is settled law that once an order attains finality, it is of little consequence that the order, in the circumstances and in its present form ought not to have been passed or may have even been erroneously passed. The Code provides the legal framework within which a party aggrieved by an order, for whatever reason or ground, may seek his remedy. Unless the remedy is pursued, the Court that passed the order may not be urged, except by an application for review or except where it is demonstrated that the order has been procured by practicing fraud or that the Court had absolutely no inherent jurisdiction to pass the same, to reopen an issue that has already been decided. In this connection, I may refer to a Bench decision of this Court reported in 2009 (1) CHN 27 (Indu Bhushan Jana vs. Union of India & ors.). Paragraphs 11 and 12 of the said decision are relevant and are reproduced below: “11. Upon an order attaining finality, it matters little as to whether it is erroneous. A party aggrieved by an order has to work out his remedies within the legal framework. Paragraphs 11 and 12 of the said decision are relevant and are reproduced below: “11. Upon an order attaining finality, it matters little as to whether it is erroneous. A party aggrieved by an order has to work out his remedies within the legal framework. If an issue or the entire lis is concluded upon a finding being rendered and such finding remains unchallenged, it is no longer open to the party to undo the effect thereof at any subsequent stage or collaterally unless it is demonstrated that the finding was obtained by fraud or the Court lacked jurisdiction to pass the order. The hierarchy in the judiciary exists to afford litigants to climb up the ladder in pursuit of justice and to right a wrong committed at a lower level. But if a litigant accepts an order, he does it to his prejudice and binds himself thereby. 12. The principle of finality or res judicata, is a matter of public policy and is one of the pillars on which a judicial system is founded. Once a judgment becomes conclusive, the matters in issue covered thereby cannot be reopened unless fraud or mistake or lack of jurisdiction is cited to challenge it directly at a later stage. The principle is rooted to the rationale that the issues decided may not be reopened, and has little to do with the merit of the decision. If it were to be otherwise, no dispute can be resolved or concluded. The principles of res judicata and constructive res judicata apply equally to proceedings under Article 226 of the Constitution.” 14. In the present case, exemption to the plaintiffs to proceed with the suit in the absence of the legal representatives of defendants 1 and 2 and has been lawfully granted the added defendants/petitioners have no subsisting right to claim that for failure to substitute the legal representatives of the deceased defendants 1 and 2 an order ought to have been made that the suit had abated partially. The contention of Mr. The contention of Mr. Das that a party without even filing written statement may participate in the proceedings of the suit and may cross-examine the witness for the plaintiff admits of no doubt, but, as is evident from the aforesaid narrative of facts, it is clear that the suit has proceeded to the stage of advancing arguments upon closure of evidence and the defendants 1 to 5 did not take any step to cross-examine the plaintiffs’ witnesses. For their neglect or failure to contest the proceedings, the defendants 1 to 5 have to suffer the consequences and the added defendants/petitioners cannot take cudgels on their behalf to protect their interests. 15. In my view, the attempt of the added defendants/petitioners is nothing but a part of dilatory strategies to gain time smacking of malafides. 16. I have considered the decision in Nathu Ram (supra). The said decision has no application in the facts and circumstances of the present case, particularly when the exemption contemplated in sub-rule (4) of Rule 4 of Order XXII has been granted to the plaintiffs. 17. There is no merit in this application. It stands dismissed, without order for costs. 18. Urgent Photostat certified copy of this judgment and order, if applied, may be furnished to the applicant at an early date.