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2011 DIGILAW 983 (CAL)

Jangli Bitkel v. Gita Das

2011-07-27

HARISH TANDAN

body2011
JUDGMENT HARISH TANDON, J. 1. AT the very outset it should be recorded that no one appears on behalf of the Opposite Party when the matter was taken up for hearing. The revisional application was directed to be proceeded ex parte. This revisional application is directed against Order No. 99 dated 19-03- 2009 passed by the learned Chief Judge, Small Causes Court, Calcutta in Ejectment Suit No. 2930 of 2000 by which an application for addition of parties was rejected. 2. THE petitioners along with one Subhas Bitkel, since deceased, filed eviction suit against the Opposite Party under the West Bengal Premises Tenancy Act, 1956. THE Opposite Party is contesting the said suit by filing the written statement. During the pendency of the suit the said Subhas Bitkel, since deceased, plaintiff No. 2, died intestate on 10.11.2008 leaving behind his widow Smt. Saraswati Bitkel, two major sons i.e. Binod Bitkel and Ranjit Bitkel, one minor son i.e. Sankar Bitkel and a minor daughter Bhagyasree Bitkel as his heirs and legal representatives. 3. THE petitioners thereafter filed an application under Order 1 Rule 10 (2) of the Code of Civil Procedure seeking for addition of the heirs of the deceased plaintiff No. 2 as party defendant in the said suit. 4. THE said application is rejected by the Trial Court by the impugned order. Mr. Debojyoti Basu, learned Advocate appearing for the petitioners submits that the Trial Court committed error in rejecting an application for addition inasmuch as substitution application can also be filed by the heirs of the deceased. It is further submitted that the remaining plaintiffs, petitioners herein, does not want the heirs of the deceased plaintiff to be added as co-plaintiffs but intended them to be added as a party defendant which can only be done under Order 1 Rule 10 (2) of the Code of Civil Procedure. Having heard the learned Advocate for the petitioners, there is no doubt that the petitioners along with one Subhas Bitkel instituted eviction suit against the Opposite Party. It is also not in dispute that the said Subhas Bitkel died on 10.11.2008 during the pendency of the said suit. Admittedly, no application for substitution was filed by the remaining plaintiffs within the statutory period as enshrined Article 120 of the Limitation Act. 5. It is also not in dispute that the said Subhas Bitkel died on 10.11.2008 during the pendency of the said suit. Admittedly, no application for substitution was filed by the remaining plaintiffs within the statutory period as enshrined Article 120 of the Limitation Act. 5. BEFORE dealing with the submissions made by the petitioners, it would be profitable to quote Order 22 Rule 3 of the Code of Civil Procedure which reads thus :- "R. 3. Procedure in case of death of one of several plaintiffs or of sole plaintiff. - (1) where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the court, on application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. (2) where within the time limited by law no application is made under subrule (1), the suit shall abate so far as the deceased plaintiff is concerned, and on the application of the defendant, the court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff." On bare perusal of the said provision if one of the plaintiffs dies and right to sue does not survive with the remaining plaintiffs the court "on an application in that behalf", shall cause the legal representative of the deceased plaintiff to be made party. If an application is not taken out within the period prescribed by law, the suit shall abate so far as the deceased plaintiff is concerned. Article 120 of the Limitation Act prescribed a period within which an application for substitution under Order 22 Rule 3 should be taken out. There is no stipulation within the said provision that an application is required to be made by the legal representatives and cannot be taken out by the remaining plaintiffs or the defendant / defendants. 6. THERE cannot be any meaning attributed to the sentence "on an application in that behalf" other than that the application can be filed by any of the parties to the suit. 6. THERE cannot be any meaning attributed to the sentence "on an application in that behalf" other than that the application can be filed by any of the parties to the suit. The contention of the petitioner that the legal representatives of the deceased plaintiff No. 2 did not agree to file an application for substitution and hence the proper course is to take out an application for addition, is not tenable. Another submission which has been made by the petitioner that they have prayed for transposition of the heirs from the category of the plaintiff to the category of the defendants is also not legally tenable. There is no doubt that the Court has a power to order transposition of parties for the purpose of complete adjudication of the questions involved in the said suit. Such transpositions are permissible between the parties to the proceedings and non party can not be transposed by the Court. If the legal representative of one of the deceased plaintiff does not wish to join the other plaintiff as co-plaintiffs, the Court is empowered to substitute them as co-defendants not by way of transposition but for complete adjudication of the dispute involved between the parties. 7. THE language implied in Order 22 Rule 3 suggests that the Court on an application shall cause the legal representatives of the deceased to be made a party and shall proceed with the suit. What is required under the said provision is that the legal representatives should be brought on record in the suit either in a category of the plaintiff or the defendants. Thus, the contention of the petitioner that the legal representatives has to be brought on record as co-plaintiffs and not as co-defendants unless transposition is order, is bereft of merit. 8. IN view of the discussion made above, this Court finds that the Trial Court has not committed any illegality in rejecting an application filed by the petitioners. The revisional application is, therefore, dismissed. However, there shall not be any order as to costs. Urgent xerox photostat copy of this order, if applied for, be given to the parties on priority basis.