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2012 DIGILAW 424 (CAL)

Ajit Dutta v. Kalpana Pal

2012-05-09

PRASENJIT MANDAL

body2012
Judgment :- Prasenjit Mandal, J. This application is at the instance of the defendants and is directed against the order dated September 17, 2010 passed by the learned Civil Judge (Junior Division), 4th Court, Howrah in Title Suit No.84 of 2009 thereby rejecting an application under Order 22 Rule 3 of the Code of Civil Procedure (henceforth shall be called ‘C.P.C.’) filed by the plaintiffs with costs. The short case is that the plaintiffs / opposite parties herein instituted a suit being Title Suit No.84 of 2009 praying for a decree of declaration, permanent injunction and other reliefs. The defendants are contesting the said suit. On August 11, 2009, the plaintiffs filed an application under Order 22 Rule 3 of the C.P.C. contending, inter alia, that the plaintiff no.4, Shyamsunder Pal died intestate as bachelor on June 30, 2009 & his heirs are already on record as other plaintiffs. So, the other plaintiffs prayed for expunge of the name of the plaintiff No.4. The defendants / petitioners herein filed a written objection contending, inter alia, that the sisters of the deceased plaintiff no.4 are the actual heirs and they are to be substituted for the deceased plaintiff no.4 and as such, the said application is not maintainable. Upon hearing both the sides, the learned Trial Judge has rejected the said application with costs of Rs.1,000/-. The learned Trial Judge has also held that the suit has abated against the deceased plaintiff no.4 and as such, the name of the plaintiff no.4 be expunged from the cause title from the suit. Being aggrieved by such orders, the defendants have preferred this application. 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 suit property as described in the schedule of the plaint originally belonged to Mahendra Dutta and Purna Chandra Dutta, since both deceased. They constructed a building on the ‘A’ Schedule property. Upon the deaths of Purna Chandra Dutta and his wife, his undivided half share had devolved upon the two sons of Mahendra Dutta, namely, Satish Chandra Dutta and Indu Bhusan Dutta. Satish Chandra Dutta died issuless and as such, his wife, Radha Rani Dutta obtained the property by inheritance from her husband. Upon the deaths of Purna Chandra Dutta and his wife, his undivided half share had devolved upon the two sons of Mahendra Dutta, namely, Satish Chandra Dutta and Indu Bhusan Dutta. Satish Chandra Dutta died issuless and as such, his wife, Radha Rani Dutta obtained the property by inheritance from her husband. Radha Rani Dutta had sold her undivided half share in ‘A’ schedule property to Radha Rani Pal and her son, Bimal Kumar Pal by a Registered Deed of Sale dated February 14, 1962 measuring about 4 decimals of land which has been described in Schedule ‘B’ to the plaint. Thereafter, Radha Rani Pal died leaving behind her two sons, namely, Bimal Kumar Pal and Shyamsunder Pal. Bimal Pal died leaving behind the plaintiff no.1, plaintiff no.2 and plaintiff nos. 3 & 5. Upon the death of Shyamsunder Pal, the said application under Order 22 Rule 3 of the C.P.C. was filed. The plaintiffs have prayed for the following reliefs in the said suit:- a) A declaration that the plaintiffs are the co-sharer of the ‘A’ schedule property and they have every joint right, title and interest to the suit property; b) Decree for permanent injunction for restraining the defendants and their men and agent from disturbing and creating any obstruction to the peaceful possession of the plaintiffs in the suit property; c) Decree for all costs of the suit; & d) Decree for any other relief/reliefs, in which plaintiffs are entitled both in law or in equity. Thus, from the prayer in the plaint, I find that upon the death of the plaintiff no.4, right to sue does not survive to the surviving plaintiffs and as such, the heirs of the deceased plaintiff no.4 are required to be substituted. Now, by filing this application under Order 22 Rule 3 of the C.P.C., the plaintiffs have stated that the other plaintiffs, that is, the nephew and nieces of the deceased plaintiff are the heirs of the plaintiff no.4. But, from the materials on record as well as the objection, it appears that the deceased plaintiff no.4 has three sisters, namely, Shyamali Chandra, Rameswary Dey and Shanti Nag (all married) and as such, according to the Law of Succession of a Hindu male dying intestate, the sisters of the deceased plaintiff would get priority in relation to the nephew and the nieces as prayed for in the application for substitution. It may be mentioned herein that the application for substitution has been filed within the period of 90 days as provided in Article 120 of the Limitation Act. Instead of giving proper opportunity to the plaintiffs to make substitution accordingly, the learned Trial Judge has observed that the suit has abated against the deceased plaintiff no.4 and so, the name of the plaintiff no.4 be expunged from the cause title of the suit. In view of the reliefs sought for in the plaint as indicated earlier, since the right to sue does not survive to the surviving plaintiffs, the impugned order to the effect that the suit has abated against the deceased plaintiff no.4 cannot be sustained at all. Since an application under Order 22 Rule 3(1) of the C.P.C. has been filed for substitution, the rejection of the said application under Order 22 Rule 3(2) of the C.P.C., I hold, is not at all tenable. If proper application for substitution is not filed within the statutory period, that is, 90 days from the date of death of the plaintiff, the suit should abate as a whole against the plaintiffs in consideration of the reliefs sought for in the suit. However, in the instant case, since an application for substitution has already been filed and it revealed from the materials on record that this application is not proper particularly in relation to succession matter, I am of the view that the learned Trial Judge should have given an opportunity to the plaintiffs to file a supplemental affidavit mentioning the heirs to be substituted as per provisions of the Hindu Succession Act. Anyway, abatement of the suit after expiry of 90 days from the date of death of the plaintiff No.4 will be automatic if no application for substitution is filed. But, in the instant case, since the application for substitution was filed, I am of the view that the contention of the defendants that the abatement of the suit as a whole is automatic after expiry of 90 days cannot be accepted. Mr. B. Ghosal appearing on behalf of the petitioners has contended that the learned Trial Judge has committed a wrong in passing the orders that the suit has abated against the plaintiff no.4 only instead of recording abatement of the suit as a whole. So, the impugned order should be set aside. Mr. B. Ghosal appearing on behalf of the petitioners has contended that the learned Trial Judge has committed a wrong in passing the orders that the suit has abated against the plaintiff no.4 only instead of recording abatement of the suit as a whole. So, the impugned order should be set aside. In support of his contention, he has referred to the decisions of Papanna & anr. v. State of Karnataka & ors. reported in (1996) 1 SCC 291 , Mukhtiar Singh & anr. v. Kishan Kaur (Smt.) & ors. reported in (1996) 7 SCC 299 and Babu Sukhram Singh v. Ram Dular Singh & ors. reported in AIR 1973 SC 204 . On the other hand, Mr. N. Bhattacharjee appearing on behalf of the opposite parties has submitted that in exercising the jurisdiction under Article 227 of the Constitution, the impugned order should not be set aside. This is not at all an appeal & as such, the impugned order should not be interfered with. With due respect to Mr. Bhattacharjee, I am of the view that the function of this Hon’ble Court, while exercising powers under Article 227 of the Constitution is to see that the Lower Court or the Tribunal acts within the bounds of its authority. If the Hon’ble Court finds that the Lower Court did not function within the bounds of its authority or acted illegally and with material irregularity, this Hon’ble Court can pass appropriate orders which should have been passed by the learned Court or Tribunal to keep it bounds within its authority. Accordingly, when the Trial Court fails to exercise its jurisdiction properly or acted illegally, appropriate orders may be passed to keep the learned Court within the bounds of its authority. So, I am of the opinion that this Court is competent to deal with the matter in dispute. In that view of the matter, I am of the opinion that the plaintiffs / opposite parties herein filed the application for substitution on a misconception of law. So, I am of the opinion that this Court is competent to deal with the matter in dispute. In that view of the matter, I am of the opinion that the plaintiffs / opposite parties herein filed the application for substitution on a misconception of law. Since, it reveals from the materials-on-record that the three sisters of the deceased plaintiff No.4 would get preference in comparison with the persons mentioned in the application for substitution, an opportunity should be given to the plaintiffs to file a supplemental affidavit which shall be treated as part of the application under Order 22 Rule 3 of the C.P.C. The learned Trial Judge shall give an opportunity to the plaintiffs to file a supplemental affidavit in support of the application for substitution within the time limit fixed by him. Then he shall give an opportunity to file an Affidavit in Opposition by the defendants and an affidavit in reply by the plaintiffs, if any, within the time fixed by him. The impugned order stands set aside. The learned Trial Judge shall hear out the application under Order 22 Rule 3 of the C.P.C. afresh. If no affidavit as indicated above is filed, the suit will stand abated as a whole as per law. The revisional application is disposed of in the manner indicated above. 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.