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2011 DIGILAW 773 (CAL)

Milan Kumar Basu v. Samir Kumar Das

2011-06-14

PRASENJIT MANDAL

body2011
Judgment :- Prasenjit Mandal, J. This application is at the instance of the plaintiff / appellant and is directed against the order dated January 24, 2008 passed by the learned Additional District Jude, 5th Court, Howrah in Title Appeal No.105 of 2005 thereby rejecting an application under Order 22 Rule 4 of the C.P.C. The plaintiff/appellant/petitioner herein instituted a suit being Title Suit No.319 of 1980 against the opposite party and another (defendant no.1) before the learned Civil Judge (Junior Division), 2nd Court Howrah praying for a decree for recovery of possession of the premises in suit, mesne profits and other reliefs. In that suit, the defendant no.1 entered an appearance, but he did not contest the said suit. The defendant no.2 / opposite party herein is contesting all along. The suit was dismissed on contest. Thereafter, the plaintiff preferred an appeal being Title Appeal No.105 of 2005. In that appeal, the appellant filed an application under Order 22 Rule 4 (4) of the C.P.C. praying for exemption from substituting the existing President in place of deceased President of the respondent club. That application was rejected on contest. Being aggrieved, this application has been preferred. Now, the question is whether the impugned order should be sustained. Upon hearing the learned Counsel for the parties and on going through the materials on record I find that the facts as stated above are not in dispute. The question of law involved in the appeal is whether the application under Order 22 Rule 4(4) of the C.P.C. could be granted at the appellate stage. The respondent no.1 is a club and it is represented by the President, namely, Aurobinda Ghoshal who was a Senior Advocate of the Howrah Court. As per contention of the respondent, Mr. Ghoshal died long time back and he was a renowned figure. He entered an appearance in the suit, but he neither filed any written statement nor contested the said suit. During the pendency of the suit, he died. The plaintiff did not pray for substitution for the defendant no.1 being represented by the new President. The suit was decreed. Thus, I find that the suit was decreed against a dead person. He entered an appearance in the suit, but he neither filed any written statement nor contested the said suit. During the pendency of the suit, he died. The plaintiff did not pray for substitution for the defendant no.1 being represented by the new President. The suit was decreed. Thus, I find that the suit was decreed against a dead person. Such decree appears to be a nullity but in order to appreciate the situation, the consideration of the provisions of Order 22 Rule 4(4) of the C.P.C. is essential and for that reason, the said rule is quoted below:- 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. Thus, from the above provisions, it is clear that the plaintiff was required to seek exemption from necessity of substituting the legal representatives of such defendant who has failed to file a written statement or who has failed to appear and contest the suit at the time of hearing. If such exemption is granted and then only the judgment pronounced against the said dead defendant shall have the same force and effect, as if, it has been pronounced before the death took place. In the instant case, no exemption has been sought for by the plaintiff during the pendency of the suit. Consequently, judgment and decree was passed against a dead person. Therefore, the decree is a nullity. The prayer for exemption can only be granted during the pendency of the suit and not at the appellate stage because by that time, the decree has been passed against a dead person. Mr. Bhudeb Bhattacharjee, learned advocate appearing for the opposite party has submitted that there are two defendants in the suit and so, when the defendant no.1 expired, a duty is cast upon the defendant no.2 to inform the Court of the death. But no such information was given. The liability of the lawyer was not discharged till such information was given. Bhudeb Bhattacharjee, learned advocate appearing for the opposite party has submitted that there are two defendants in the suit and so, when the defendant no.1 expired, a duty is cast upon the defendant no.2 to inform the Court of the death. But no such information was given. The liability of the lawyer was not discharged till such information was given. He has also submitted that the said club was also represented by the defendant no.2 and so, it cannot be said that the club was not represented at all during trial. In this regard, I find that though the duty is cast upon the conducting lawyer of the defendant to inform the death of defendant, if no information is given, the plaintiff is not exempted from substitution or from taking any step under Order 22 Rule 4(4) of the C.P.C. As soon as such information is given, the plaintiff is required to take necessary steps for substitution. Mr. Bhattacharjee has also submitted that the defendant no.1 was a renowned person and he was an Ex. M.P. and so his death was known to everybody and so the plaintiff was aware of the death of the defendant no.1 and since he did not take any step, he cannot be allowed to take steps subsequently. In any way, the Court is concerned whether the decree was passed legally and correctly and whether it is valid or not. Since, the decree was passed against the dead person by inadvertence, I am of the opinion that such decree has no force at all. So, the plaintiff should be given adequate opportunity to take appropriate steps. Therefore, I am of the view that the learned Trial Judge was justified in rejecting the prayer for exemption under Order 22 Rule 4(4) of the C.P.C. Therefore, so far as the impugned order is concerned, I am of the view that there is nothing to interfere with the impugned order. However, since the judgment and decree has been passed against a dead person, I am of the view that the said decree is a nullity and it cannot be enforced at all. Under the circumstances, it will not be proper for the Appellate Court to proceed further with the hearing of the appeal. However, since the judgment and decree has been passed against a dead person, I am of the view that the said decree is a nullity and it cannot be enforced at all. Under the circumstances, it will not be proper for the Appellate Court to proceed further with the hearing of the appeal. The course, that is open to the Appellate Court, is to set aside, the judgment and decree passed by the learned Trial Judge and to remand the suit to the learned Trial Judge to proceed with the suit afresh. The learned Trial Judge shall give an opportunity to the parties to take appropriate steps for substitution and then to proceed with the suit. The revisional application is disposed of in the manner indicated above. The learned Lower Appellate Court shall direct the learned Trial Judge to dispose of the suit at an early date mentioning the period within which the suit shall be disposed of. Considering the circumstances, there will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.