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2015 DIGILAW 631 (GAU)

Lakhyada Bala Talukdar v. Jogeswar Talukdar

2015-05-26

SUMAN SHYAM

body2015
JUDGMENT Heard Mr. C. Goswami, learned counsel for the appellant. Also heard Mr. A. Das, learned counsel appearing for the respondent. 2. This second appeal has been filed by the plaintiff being aggrieved by the judgment and order dated 26-11-2007 passed by the learned District Judge, Barpeta in Title Appeal No. 04/2007 dismissing the appeal filed by the present appellant holding the same as a nullity since the memorandum of appeal was filed impleading Jogeswar Talukdar i.e. the original plaintiff who had died before the presentation of the appeal. The facts leading to the passing of the impugned judgment and order is that the original plaintiff, Jogeswar Talukdar had instituted Title Suit No. 46/2003 in the court of learned Civil Judge, Barpeta seeking a decree declaring right, title and interest and also for a decree of partition against the present appellants defendants. Be it mentioned herein that the dispute involved in the title suit was amongst the parties having a common ancestor. 3. Title Suit No. 46/2003 was decreed in favour of the plaintiff on 18-09-2006. Being aggrieved by the judgment and decree dated 18-09-2006 passed in Title Suit No. 46/2003, the present appellants had preferred an appeal in the court of learned District Judge, Barpeta on 29-01-2007 along with a application praying for condonation of delay of 62 days in filing the appeal. 4. Upon receipt of notice in connection with the application filed under Section 5 of the Limitation Act for condonation of delay, the legal heirs of Jogeswar Talukdar appeared before the First Appellate Court and brought to the notice of the learned District Judge, Barpeta that the sole respondent/ plaintiff, Jogeswar Talukdar, had died on 25-11-2006 i.e. before the memorandum of appeal was presented before the court. The said fact having come to light the appellants took a stand that they were not aware of the death of Jogeswar Talukdar on the date of filing of the memorandum of appeal. As such on 10-05-2007, an application purportedly filed under Order XXII of the Code of Civil Procedure seeking amendment of the cause title so as to bring on record the five legal heirs of Jogeswar Talukdar named therein, was filed by the appellants. 5. As such on 10-05-2007, an application purportedly filed under Order XXII of the Code of Civil Procedure seeking amendment of the cause title so as to bring on record the five legal heirs of Jogeswar Talukdar named therein, was filed by the appellants. 5. The application dated 10-05-2007 was taken up by the learned First Appellate Court together with the appeal on the point of admission and thereafter, by the judgment and order dated 26-11-2007 the appeal itself was dismissed. The first appeal filed by the appellant itself was dismissed on the ground that the same having been preferred against a dead person, the appeal itself was a nullity. 6. Being aggrieved by the judgment and order dated 26-11-2007 the appellant has preferred the instant second appeal which was admitted to be heard on the following substantial question of law: “Whether the learned First Appellate Court was justified in dismissing the appeal as nullity on the ground that the appeal against a dead persons is not maintainable, though it is the case of the appellants that they did not know about the death of the sole respondent and in the decree prepared, the name of the respondent, who is dead was reflected.” 7. Mr. C. Goswami, learned counsel for the appellant submits that the legal principle applied by the learned First Appellate Court may have application in cases where a decree has been passed against a dead person. However, in the present case Jogeswar Talukdar was alive on the date on which the decree was passed by the Trial Court. As such, even if the memorandum of appeal had erroneously included the name of a dead person, the First Appellate Court had the power to allow the prayer for bringing on record the legal heirs of Jogeswar Talukdar by way of substitution on the basis of the application dated 10-05-2007. He submits that the view taken by the First Appellate Court to the effect that the appeal itself is a nullity is completely erroneous and hence, the impugned judgment and order is liable to be set aside on such count alone. 8. Mr. Goswami, further submits that the legal heirs of Jogeswar Talukdar had not only entered appearance before the First Appellate Court but all such legal heirs are also respondents in the present appeal who are contesting the present proceeding as well. 8. Mr. Goswami, further submits that the legal heirs of Jogeswar Talukdar had not only entered appearance before the First Appellate Court but all such legal heirs are also respondents in the present appeal who are contesting the present proceeding as well. Therefore, the question of substituting the legal heirs of Jogeswar Talukdar at the first appeal, as such is a mere formal requirement which can be done even at this stage on the basis of appropriate application filed before the First Appellate Court. 9. Mr. A. Das, learned counsel for the respondent submits that although there is provision for substituting the legal heirs of Jogeswar Talukdar before the First Appellate Court, yet since the appellants have not approached the First Appellate Court with appropriate application, hence, the said prayer was rightly rejected by the learned First Appellate Court. By relying upon a decision of the High Court of Calcutta reported in AIR 1965 Calcutta 459 (Vol.53, C.88)(1), Mr. Das submits that in the case where an appeal has been filed against a dead person, the proper approach on the part of the appellant would have been to file an application for presentation of the appeal against the heirs of the dead person afresh if they are able to satisfy the court as regards the delay in making such application, then there is no bar in permitting such prayer of substitution. Since the appellants have not taken the remedy under the law, hence, their right in respect thereof stands waived. On the basis of such argument, Mr. Das prays for dismissal of the appeal on such count alone. 10. I have considered the submissions made by the learned counsel for the parties. On perusal of the impugned judgment and order passed by the First Appellate Court what can be seen is that the learned First Appellate Court rejected the application dated 10-05-2007 without assigning a valid reason. The sole reason that has been recorded is that the appeal itself is a nullity because the same was filed against a dead person. The Code of Civil Procedure provides for adequate remedy to the appellant in cases where an appeal is presented against a dead person. The sole reason that has been recorded is that the appeal itself is a nullity because the same was filed against a dead person. The Code of Civil Procedure provides for adequate remedy to the appellant in cases where an appeal is presented against a dead person. In the instant case the decree having been passed during the life time of the original plaintiff, namely, Jogeswar Talukdar, the same has merge into the estate of the plaintiff and therefore, the said decree can be challenged by the defendant/ appellants by impleading the legal heirs of the original plaintiff as party respondents. However, in order to do so, the appellant would be required to file an appropriate application before the Appellate Court explaining the reasons for delay in filing the same, if any. Such an application had been filed by the appellant on 07-05-2007 although without quoting the correct provision of law. 11. Having regard to the fact that learned First Appellate Court has dismissed the appeal without going into the merit of the same and in view of what has been observed hereinbefore this Court is inclined to set aside the judgment and order under appeal and remand the matter back to the First Appellate Court for a fresh decision of the appeal subject to the appellants succeeding in impleading the legal heirs of the deceased respondent/ plaintiff by filing appropriate application in accordance with law. If the appellants approached the First Appellate Court by filing appropriate application for substitution of the legal heirs of Jogeswar Talukdar by explaining the delay in doing so then in that event the learned First Appellate Court will consider the same on merit and thereafter pass necessary order for further proceeding in the appeal. With the above observations this second appeal is allowed to the extent indicated hereinbefore.