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2015 DIGILAW 758 (CAL)

Prabhawati Sharma v. Usha Pandey

2015-09-09

ASHIS KUMAR CHAKRABORTY

body2015
JUDGMENT : Ashis Kumar Chakraborty, J. Re : CAN 7029 of 2014 & CAN 7874 of 2014. These applications have been filed by the surviving appellants in the second appeal in SA 91 of 2011 which was dismissed on merit by a learned Single Judge of this Court on February 11, 2014. The second appeal arose out of a judgment and decree passed by a learned Judge of the City Civil Court at Calcutta affirming the judgement and decree for eviction passed by the learned Judge of the Presidency Small Causes Court, 2nd Bench, Calcutta. The hearing of the appeal was concluded before the learned Single Judge on February 6, 2014 and the judgment was delivered on February 11, 2014. In the meantime, on February 7, 2014 the appellant no. 2 in the second appeal died intestate leaving behind his legal representatives. 2. On March 24, 2014 a memorandum of review was filed for review of the judgment of the learned Single Judge of this Court dated February 11, 2014 with the names of all the appellants in the second appeal including the appellant no. 2 who was already dead. An Application, CAN 5780 of 2014 was also filed for stay of operation of the decree passed in the second appeal. On July 7, 2014 when the said stay application was taken up by a learned Single Judge of this Court, an objection was raised on behalf of the respondents with regard to the maintainability of the review application on the ground that the applicant no. 2 was a dead person. Thereafter, on July 15, 2014 the surviving appellants filed the application being CAN 7029 of 2014 to obtain leave to present the fresh memorandum of review by impleading the legal representatives of the original appellant no. 2 as the respondents, on the ground that they refused to join the surviving appellants in the review application. The application being CAN 7874 of 2014 is the application under section 5 of the Limitation Act for condoning the delay in filing the subsequent review application CAN 7029 of 2014. 3. Mr. 2 as the respondents, on the ground that they refused to join the surviving appellants in the review application. The application being CAN 7874 of 2014 is the application under section 5 of the Limitation Act for condoning the delay in filing the subsequent review application CAN 7029 of 2014. 3. Mr. Bhattacharya, learned counsel appearing for the applicants in CAN 7029 of 2014 submitted that it is the settled law that if a person impleaded as a respondent in an appeal is already dead as on the date of presentation of the memorandum of appeal, there is no question of addition or substitution of the legal representatives of the deceased respondent in the appeal. He submitted that in such a case the proper course will be to prefer the appeal afresh against the heirs and legal representatives of the deceased respondent. In support of the said contention, Mr. Bhattacharya cited the decision of the Division Bench of this Court in the case of State of West Bengal v. Manisha Maity and others, reported in 68 CWN 189. Relying on the said decision he further submitted that the remedy of an appellant, who has filed an appeal against a dead person, is to file an application for presentation of the appeal against the heir or legal representatives of the dead person afresh and if the time for filing the appeal had expired in the meantime, he is to present an application under Section 5 of the Limitation Act explaining the delay in presenting the appeal afresh. He further submitted that the above decision of the Division Bench of this Court has been relied in the subsequent decisions of the Division Bench of this Court in the cases of Sachindra Chandra Chakravarti v. Jnanendra Narayan Singh Roy reported in AIR 1963 Calcutta 417 and Asgar Ali v. Jamil Akhtar Siddique & Ors. reported in 2009(1) CHN Cal 333. 4. Based on the aforementioned authorities cited by him Mr. reported in 2009(1) CHN Cal 333. 4. Based on the aforementioned authorities cited by him Mr. Bhattacharya submitted that even in a case where an appeal is filed with the name of a dead person in the memorandum of appeal, the same principle will follow and an application has to be filed by the surviving appellants for presentation of the memorandum of appeal, with the name of the heirs and the legal representatives of the deceased appellant, afresh and if in the meantime the time for filing the appeal expires, the surviving appellants are also to present an application under Section 5 of the Limitation Act explaining the reasons for delay in presenting the appeal afresh with the heirs and the legal representatives of the deceased appellant. He further contended that it is the settled law that if an heir or a legal representative of a party to a suit who has suffered a decree along with others does not wish to join the appellants in an appeal to challenge the decree, he has to be im-pleaded as a party respondent in the appeal. According to him in the instant case when the legal representatives of the deceased appellant no. 2 did not join the surviving appellants in the review application, the surviving appellants had to file the memorandum of review afresh by impleading the legal representatives of the deceased appellant no. 2 as party respondents. 5. Mr. Bhattacharya also submitted that since, in the meantime the prescribed period of limitation of thirty days for filing the review application had expired, along with the application to file the memorandum of review afresh, the applicants have also filed the application, CAN 7874 of 2014 under Section 5 of the Limitation Act, 1963. So far as the reasons for delay in filing the application Mr. Bhattacharya relied on the statements contending in various paragraphs of the application CAN 7874 of 2014 particularly, paragraph 18 of CAN 7874 of 2014 thereof where it is stated that the factum of death of the appellant no. So far as the reasons for delay in filing the application Mr. Bhattacharya relied on the statements contending in various paragraphs of the application CAN 7874 of 2014 particularly, paragraph 18 of CAN 7874 of 2014 thereof where it is stated that the factum of death of the appellant no. 2 was not disclosed to the learned advocate who prepared the memorandum of review and the stay petition, the name of the said deceased appellant appeared in the cause title of the memorandum of review and the stay application as the learned advocate drafted the same on the basis of the decree passed by this Court in the second appeal. In support of such ground he relied on the decision of the Division Bench of the Punjab and Haryana High Court in the case of Jaswant v. Financial Commissioner and reported in AIR 1993 P&H 111 . 6. On the contrary, Mr. De, learned counsel appearing for the respondents-plaintiffs, submitted that the present application filed by the surviving appellants in the second appeal is not maintainable. He submitted that as an appeal in the name of a dead person is not maintainable, a review application filed in the name of a dead person is also not maintainable. In support his contention Mr. De cited a decision of the Bombay High Court in the case of Bai Pani Vankar v. Patel Madhabhai Galabhai reported in AIR 1953 Bom. 356 and the decision of the Supreme Court in the case of Maulviissa Qureshi v. District Judge, Deoria and others reported in (1996) 5 SCC 731 . 7. Mr. De further cited two decisions of the Supreme Court, the first in the case of Basawaraj and another v. Special Land Acquisition Officer reported in (2013) 14 SCC 81 and the second one is an unreported decision dated May 15, 2015 in the case of GMG Engineering Industries v. Issa Green Power Solution and submitted that for the purpose of considering the application under section 5 of the Limitation Act, it is the duty of this Court to consider whether the explanations of the petitioners constitute sufficient cause disclosing that there was no negligence or inaction or lack of bona fide attributed to them in filing the present review application. 8. 8. Following the decision the Federal Court in the case of Bank of Commerce Ltd. v. Pratap Chandra Ghose reported in 1946 F.C.R. 32 in the aforementioned decisions of this Court, in the cases of State of West Bengal (supra), Sachindra Chandra Chakravarti (supra) and Asgar Ali (supra) the Division Bench of this Court have held that if an appeal is preferred against a dead respondent, the appeal is still born and is no appeal in the eye of law and nothing in Order 22 of the Code will revive the appeal, and when the death of the respondent comes to light, the remedy of the appellant is to file an application for presentation of the appeal against the heirs and legal representatives of the dead person afresh. If the time for filing the appeal was in the meantime over, the appellant is to present an application under Section 5 of the Limitation Act, explaining therein, the delay in presenting the appeal afresh against the heirs or legal representatives of the dead person. Similarly, if an appeal is preferred in the name of a dead appellant, the appeal itself is still born and is no appeal in the eye of law. Consequently, nothing in Order 22 of the Code will revive the appeal. The surviving appellant has also to file an application for presentation of the appeal by impleading the heirs or legal representatives afresh. Now if the heirs or legal representatives of the dead appellant in the first appeal, do not wish to join the fresh appeal as appellants, then the remedy of the surviving appellant is to implead them as party respondents in the fresh appeal. If the time for filing the appeal is in the meantime over, the surviving appellant has to present an application under Section 5 of the Limitation Act explaining therein, the delay in presenting the appeal afresh. 9. The above logic is also applicable in the instant case when the original application for review was filed with the name of original appellant no. 2 who had already died. The original review application including the name of the appellant no. 2, who was already dead, was still born and no review application in the eye of law and surviving appellants had to file the review memorandum of im-pleading the heirs or legal representatives, afresh. Since the legal representatives of the original appellant no. 2 who had already died. The original review application including the name of the appellant no. 2, who was already dead, was still born and no review application in the eye of law and surviving appellants had to file the review memorandum of im-pleading the heirs or legal representatives, afresh. Since the legal representatives of the original appellant no. 2 refused to join the applicants in review application, they were to be im-pleaded as pro forma respondents. Thus, the application CAN 7029 of 2014 of the praying for leave to file the memorandum of review afresh will be maintainable, if the applicants can explain the delay in filing the memorandum of review after the expiry of the prescribed period of limitation of 30 days from the date of the judgement and decree sought to be reviewed. In paragraphs 15 to 18 of the application CAN 7874 of 2014 the applicants have stated that due to inadvertence the death of the original appellant no. 2 was not disclosed by them to the learned advocate who prepared the memorandum of review, and the advocate prepared the memorandum of review from the cause title of the decree passed in the second appeal and when the advocate informed them that on July 07, 2015 an objection has been raised on behalf of the respondents landlords to the maintainability of the review application, the present application for obtaining leave to file the memorandum of review afresh was filed. In the case of Jaswant v. Financial Corporation (supra) cited by Mr. Bhattacharya the advocate prepared the memorandum of appeal by setting out the parties to the appeal from the impugned order of the learned Single Judge of the High Court without having knowledge that one of the appellants was already dead and the Division Bench of Punjab and Haryana High Court accepted the same as a bona fide mistake. 10. The only ground stated in the application for condonation of delay is that since the factum of death of the original appellant was not disclosed before the learned advocate, the name of the said deceased appeared in the cause title of the application for review as the learned advocate drafted the cause title of the memorandum of review on the basis cause title in the decree passed by this Court. Mr. Mr. De have cited two decisions of in the cases of Basawaraj and another (supra) and GMG Engineering Industries (supra) where the Supreme Court held that while dealing with an application under Section 5 of the Limitation Act, it is the duty of the Court to consider whether the explanations of the petitioners constitute sufficient cause disclosing that there was no negligence or inaction or lack of bona fide attributed to the petitioners in filing the appeal or the application. In the instant case it cannot be said that there was any lack of bona fide on the part of the applicants to file the earlier review application without disclosing the death of the original appellant no. 2 to their advocate. However, the conduct of the applicants in this case is nothing but careless. 11. The application filed under Section 5 of the Limitation Act that is, CAN 7874 of 2014 is allowed subject to payment of costs assessed at Rs. 7,500/- by the applicants to the respondents through their learned Advocate, within a period of seven days from today. Subject to payment of costs assessed at Rs. 7500/- by the applicants within the time mentioned above, the application CAN 7029 of 2014 shall stand allowed. 12. With the above directions, both the applications CAN 7029 of 2014 and CAN 7874 of 2014 stand disposed of. 13. On the prayer of Mr. De, let these applications appear in the list on September 16, 2015 under the heading To Be Mentioned for ascertaining the compliance of this order. Certified website copies of the order, if applied for, be urgently made available to the parties, subject to compliance with all requisite formalities.