Research › Search › Judgment

Calcutta High Court · body

2014 DIGILAW 64 (CAL)

R. K. P. Udyog v. Hemraj Mahabir Prasad

2014-01-29

DEBANGSU BASAK

body2014
Judgment : Debangsu Basak, J. In a suit for eviction 53 persons were impleaded as original defendants. The writ of summons wasissued against all the defendants. The writ of summons was duly served on them. Service of summons on all the defendants was a finding recorded in the Order dated April 20, 2004. Out of the 53 defendants few entered appearance while others chose not to. An application being G.A. No. 3754 of 2003 was taken out by the plaintiff. It concerned with the death of the Defendant Nos. 18, 29, 33, 35, 36, 44 and 45. G.A. No. 3754 of 2003 was disposed of by an Order dated April 4, 2004. By such order so far as Defendant No. 33 was concerned it was held that even after service of the writ of summons the Defendant No. 33 did not enter appearance. By such order the exemption in terms of Order XXII Rule 4(4) of the Code of Civil Procedure, 1908 was granted to the plaintiff as prayed for in G.A. No. 3754 of 2003. The heirs of the Defendant No. 33 made the present application seeking condonation of delay in making the application and recording the death of the Defendant No. 33 and amendment of the plaint as well as the consequential re-verification thereof. On the application being moved I enquired of the plaintiff as to whether they wanted to use any affidavit when the answer was in the negative. The application was, thereafter, taken up for hearing. In course of hearing on the first date accommodation was sought for on behalf of the heirs of the Defendant No. 33 which was granted. Mr. M.S. Tiwari, Advocate appearing for the heirs of the Defendant No. 33 submitted that his clients ought to be brought on record as the heirs of the Defendant No. 33. The Defendant No. 33 died on July 29, 1994. His death be recorded. Since the plaintiff was not taking any steps for the purpose of recording the death and substituting the heirs of the deceased Defendant No. 33, his clients were constrained to make the application. He sought necessary relief in that regard. He submitted that his clients were both necessary and proper party to the suit and were entitled to contest the suit by filing written statement. Mr. He sought necessary relief in that regard. He submitted that his clients were both necessary and proper party to the suit and were entitled to contest the suit by filing written statement. Mr. Ashish Chakroborty, Advocate for the plaintiff submitted that the heirs of the Defendant No. 33 were guilty of suppression of material facts. According to him such material facts were the letter dated August 18, 2003 written by the Advocate for the defendants intimating the death of the Defendant No. 33 to the Advocate for the plaintiff as well as the enclosure to such letter being the death certificate of the Defendant No. 33 as also the Order dated April 20, 2004. He submitted that the heirs of the Defendant No. 33 were well aware of the pendency of the instant suit. They made themselves unavailable to be substituted in place and stead of the Defendant No. 33 at the relevant time. There was no explanation in the application as to how and when the heirs of the Defendant No. 33 sent a copy of the death certificate as an enclosure to the letter dated August 8, 2003. According to him the death certificate was obviously made over by the heirs of the Defendant No. 33 to the Advocate. The heirs of the Defendant No. 33 were, therefore, in the know of the suit and chose not to intimate their names and address to plaintiff nor take any steps in the suit. He also submitted that the right of the heirs of the Defendant No. 33 to be heard in the present suit stood forfeited by virtue of the Order dated April 20, 2004. In support of his contention that an applicant guilty of suppression of material facts was not entitled to any relief he relied on 1994 Volume 1 Supreme Court Cases page 1 (S.P. Chengalvaraya Naidu v. Jagannath & Ors.). I have considered the application as well as the petition being G.A. No. 3754 of 2003 and the Order date April 20, 2004 and the respective submissions. It was held by the Order dated April 20, 2004 that the Defendant No. 33 was served with the writ of summons. The Defendant No. 33 died on July 29, 1994. His death was intimated by the Advocate of the defendants by a letter dated August 8, 2003. It was held by the Order dated April 20, 2004 that the Defendant No. 33 was served with the writ of summons. The Defendant No. 33 died on July 29, 1994. His death was intimated by the Advocate of the defendants by a letter dated August 8, 2003. The letter dated August 8, 2003 and the certificate of death of the Defendant No. 33 are annexed to G.A. No. 3754 of 2003 on which Mr. Chakroborty relied. The present application contained 12 paragraphs. The first paragraph related to the prayers sought for in the plaint. The second paragraph emphasized that the late Defendant No. 33 was a party to the suit. In paragraph 3 of the application the heirs of the Defendant No. 33 claimed that they were not aware as to whether the writ of summons was served on the Defendant No. 33 or not. In paragraph 4 the death of Defendant No. 33 was pleaded. The heirs of the Defendant No. 33 accused the plaintiff for not taking steps for substitution in paragraph 5. The heirs of Defendant No. 33 claimed right to the estate of the Defendant No. 33 as well as the right to defend the suit in paragraph 6 of the application. In paragraph 7 of the application the plaintiff was accused of failing to substitute the heirs of the Defendant No. 33. In paragraph 8 it was claimed that the plaint should be amended in the manner as shown in Annexure ‘A’ to the application. In paragraph 9 the heirs of the Defendant No. 33 claimed that there was no delay as they were not aware of the legal procedure. In paragraphs 10 and 11 of the application the heirs of the Defendant No. 33 claimed themselves as both necessary and proper parties. In paragraph 12 it was claimed that the application was bona fide. The suit for eviction was filed in 1992. The death of the Defendant No. 33 occurred on August 31, 1994. The intimation of the death of the Defendant No. 33 was given on August 8, 2003 without any other particulars. There was no whisper in the present application as to how the heirs of the Defendant No. 33 came to know about the pendency of the instant suit. The death of the Defendant No. 33 occurred on August 31, 1994. The intimation of the death of the Defendant No. 33 was given on August 8, 2003 without any other particulars. There was no whisper in the present application as to how the heirs of the Defendant No. 33 came to know about the pendency of the instant suit. Again the heirs of the Defendant No. 33 did not explain the steps they had taken to claim their right in the suit. As rightly pointed out by Mr. Chakroborty the application was not only without material particulars but the heirs of the Defendant No. 33 was guilty of suppression of material facts. The heirs of the Defendant No. 33 suppressed a material fact as to how they came to know of the suit in the application. As held by the Hon’ble Supreme Court in 1994 Volume 1 Supreme Court Cases page 1 (S.P. Chengalvaraya Naidu v. Jagannath & Ors.) a person who was guilty of suppression of material facts was not entitled to any relief. Apart from the heirs of the Defendant No. 33 being guilty of suppression of material facts the Order dated April 20, 2004 was binding on them. Such order granted exemption to the plaintiff under Order XXII Rule 4(4) of the Code of Civil Procedure, 1908 as prayed for by the plaintiff in G.A. No. 3754 of 2003. The relevant prayer in G.A. No. 3754 of 2003 allowed by the Order dated April 20, 2004 was as follows:- “(ii) Exemption in terms of Order 22 Rule 4(4) of the Code of Civil Procedure, 1908 from substituting the heirs and legal representatives of defendants 33, 36 and 44;” In such view the present application is dismissed. However, there will be no order as to costs.