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2011 DIGILAW 504 (CAL)

Shyam Sundar Gupta v. Mira Devi Gupta

2011-04-06

DIPANKAR DATTA

body2011
Judgment : 1. The opposite party no.1 herein (hereafter the plaintiff) instituted Title Suit No.62 of 2003, being a suit for declaration and injunction against 8 (eight) defendants and 1 (one) proforma defendant. It is pending on the file of the learned Civil Judge (Junior Division), Additional Court at Sealdah. According to the plaintiff, the defendant no.7 having breathed his last during the pendency of the suit, the right to sue survived against defendant nos. 1 to 6 and 8 only and not against anybody else. A prayer was made for expunging the name of the defendant no.7 from the cause title of the plaint and to proceed with the suit against the remaining defendants, who are the surviving legal heirs of deceased defendant no.7. 2. The petition was contested by the defendant no.1, the petitioner herein (hereafter the petitioner). According to him, the defendant no.7 left behind him his widow (Smt. Manju Gupta) who had not been substituted in place and instead of defendant no.7 and, therefore, an order of abatement of the suit ought to be passed. 3. Upon a contested hearing, the learned Judge by order no.146 dated April 28, 2010 allowed the petition filed by the plaintiff for expunging the name of the defendant no.7 from the cause title of the plaint. The learned Judge was of the opinion that if at all the defendant no.7 had left behind a widow, an assertion that was seriously disputed by the plaintiff, it was open to such widow to come forward with an application for her substitution instead and in place of the deceased defendant no.7. Reliance in this connection was placed on the Bench decision of the Madras High Court reported in AIR 1923 Madras 679 (M. Kuppuswami Chetty and others v. M. Singaravelu Chetty and others). Since no such prayer had been made by the widow of the deceased defendant no.7, the suit could proceed against the surviving defendants in terms of provisions of Order XXII Rule 2 of the Code of Civil Procedure (hereafter the Code). 4. This revisional application under Article 227 of the Constitution of India is directed against the said order dated April 28, 2010. 5. Mr. 4. This revisional application under Article 227 of the Constitution of India is directed against the said order dated April 28, 2010. 5. Mr. Mahato, learned advocate appearing for the petitioner invited my attention to the contents of the application to contend that the plaintiff despite having full knowledge of the fact that the defendant no.7 left behind him a widow, did not file any application for substitution and instead prayed for expunging the name of the deceased defendant no.7 from the cause title of the plaint. It was further contended by him that since a dispute had cropped up as to whether Smt. Manju Gupta is the widow of the deceased defendant no.7 or not, the same ought to have been determined by the learned Judge in terms of provisions contained in Order XXII Rule 5 of the Code. By not determining the issue, the learned Judge failed to exercise jurisdiction vested in him in law. According to him, the learned Judge on the basis of misconception of law committed an error of law by allowing the plaintiff’s application and in not holding that the suit had abated. 6. Ms. Khattri, learned advocate appearing for the plaintiff, on the other hand, supported the order of the learned trial Judge and submitted that the order calls for no interference. 7. I have heard learned advocates for the parties. In the present case, the plaintiff asserted that the defendant no.7 died without leaving behind him any heir or legal representative whereas the petitioner contended that the defendant no.7 is survived by his widow. This is, in my opinion, one such case in which a stitch in time may save many nines. 8. Whether or not the defendant no.7 left behind him a widow, as it presently stands, is a disputed question of fact. That could fall for determination if the widow of the deceased defendant no.7, whose existence is denied by the plaintiff, at all makes an approach in this behalf. It is open to her to approach the trial Court with an application under Order XXII Rule 4 and seek an order for her substitution in place and instead of the deceased defendant no.7, as has been held in M. Kuppuswami Chetty (supra), and as observed by the learned Judge. It is open to her to approach the trial Court with an application under Order XXII Rule 4 and seek an order for her substitution in place and instead of the deceased defendant no.7, as has been held in M. Kuppuswami Chetty (supra), and as observed by the learned Judge. In the event the plaintiff disputes the claim of the widow, the Court would have the occasion to determine the question as to whether the said widow is the legal representative of the deceased defendant no.7 or not under Rule 5 of Order XXII of the Code. 9. However, taking an overall view of the matter, I am of the view that the proceeding having reached the trial Court for adjudication as to whether the deceased defendant no.7 is survived by his widow or not, a pragmatic view and not theoretical perfection, ought to have been the call of the day. It would have been desirable if the learned Judge decided the point by exercising power conferred by Rule 5 of Order XXII instead of leaving the matter futuristically fluid by avoiding a clear-cut disposal. Adjudication on the point would have saved the parties, including the plaintiff, time, energy, money and also agony. 10. While the plea of the petitioner that the entire suit had abated for not substituting the heir of the deceased defendant no.7 is not well conceived, even in the absence of any approach being made by the widow of the deceased defendant no.7 nothing prevented the learned Judge from deciding the point in issue and he would have been justified if he had done so. 11. I, therefore, set aside the impugned order of the learned Judge. 12. Notice of the application filed by the petitioner shall be issued by the Court on the so called widow of the deceased defendant no.7 immediately upon receiving this order. If there is any doubt in respect of the present address of the widow of the deceased defendant no.7, the petitioner shall be under an obligation to furnish the same. Thereafter, law shall take its course depending upon whether the said widow responds to the notice or not. The learned Judge shall take a decision with utmost expedition. 13. The revisional application stands disposed of, without any order for costs. 14. Thereafter, law shall take its course depending upon whether the said widow responds to the notice or not. The learned Judge shall take a decision with utmost expedition. 13. The revisional application stands disposed of, without any order for costs. 14. Urgent photostat certified copy of this judgment and order shall be furnished to the applicant at an early date.