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2019 DIGILAW 1222 (GAU)

Tripti Das Purkayastha v. Sajjat Ali Choudhury

2019-11-14

PRASANTA KUMAR DEKA

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JUDGMENT : Prasanta Kumar Deka, J. 1. Heard Mr. N. Dhar, the learned counsel for the petitioners and Mr. A.K. Talukdar, the learned counsel appearing on behalf of the respondent Nos. 1(Ka), 1(Kha), 1(Ga), 1(Gha), 1(Uma), 1(Cha), 1(Chha) and 1(Ja). 2. The present petitioners filed Title Suit No. 125/1981 in court of learned Munsiff No. 2, Karimganj for declaration of right, title, interest and possession over the Schedule IV land in the plaint and for permanent injunction against the respondent/defendant No. 1 predecessor in interest of the respondent Nos. 1(Ka) to 1(Ja) and others. During the pendency of the suit, the plaintiff No. 2 Ashutosh Das Purkayastha, father of petitioner Nos. 2 to 5 and the husband of the petitioner No. 1 died on 08.11.2000 leaving behind his legal heirs other than those already on record. It is submitted that on 03.02.2001, petition No. 527/2 was filed in order to bring on record the left out legal heirs of the plaintiff No. 2 as there was no mention of the said legal heirs in the plaint nor impleaded as plaintiffs. The said petition No. 527/2 purportedly filed on 03.02.2001 was not taken up and no order was passed and, as such, another petition No. 548/17 was filed on 22.05.2007 thereby praying for disposal of the earlier petition No. 527/2. The defendant Nos. 1(Ka) and 1(Ga) also expired during the pendency of the suit and having come to know about the said fact of death, the petitioners filed petition No. 549/18 before the learned court below for a direction to the defendants to disclose the names of the legal heirs of the said deceased defendant Nos. 1(Ka) and 1(Ga). Another petition No. 547/16 was filed for modifying the order dated 13.09.2006 and allow survey of the suit land by appointing a Commission. The respondents objected against the petition No. 548/17 stating that no such petition No. 527/2 on 03.02.2001 was filed nor the same formed part of the record. On the said ground, the petition No. 548/17 was sought to be dismissed. Further it was the objection that no copy of the said petition No. 527/2 was served on the defendants. The respondents objected against the petition No. 548/17 stating that no such petition No. 527/2 on 03.02.2001 was filed nor the same formed part of the record. On the said ground, the petition No. 548/17 was sought to be dismissed. Further it was the objection that no copy of the said petition No. 527/2 was served on the defendants. As against the petition No. 549/18 it was objected that suit as abated against the legal heirs of the deceased defendants already whereafter the subsequent petition was filed for furnishing names and addresses of the legal heirs of the deceased defendant Nos. 1(Ka) and 1(Ga). So the same was liable to be dismissed. 3. The learned court below vide impugned order dated 18.06.2007 passed in Title Suit No. 125/1981 dismissed all the three applications. Being aggrieved, the petitioners are before this court by filing this revision petition. 4. I have heard the learned counsel. It is the contention of Mr. Dhar that some of the legal heirs of the deceased plaintiff No. 2 are already on record and accordingly the suit cannot be held to be abated against the other legal heirs of the plaintiff No. 2 who are not on record. Regarding non disclosure of the name/names of the legal heirs of the deceased defendants and the subsequent rejection order impugned he wants to project that a direction can be given to the conducting counsel to disclose the name/names of the legal heirs of deceased defendants in the trial court. Mr. Talukdar on the other hand, submits that no such petition No. 527/2 was filed on 03.02.2001. The learned court below checked the Court Fee Register of the relevant date and came to the conclusion that no such petition No. 527/2 was found. It is further submitted that a court cannot direct the conducting counsel in the Trial Court nor here to disclose the names of the legal heirs of the deceased defendants/respondents. If at all the conducting counsel gets the names of the legal heirs such disclosure by the conducting counsel is on the volition of the learned counsel and no specific direction can be given to disclose the names of the legal heirs of the deceased party represented by the said counsel. If at all the conducting counsel gets the names of the legal heirs such disclosure by the conducting counsel is on the volition of the learned counsel and no specific direction can be given to disclose the names of the legal heirs of the deceased party represented by the said counsel. It is his further contention that the defendants are neighbours of plaintiffs and in order to overcome the barrier of limitation such application was filed by the plaintiffs. 5. From the aforesaid submissions of the learned counsel, I am of the view that the submission of Mr. Dhar has its force to the extent that as some of the legal heirs are already on record, the suit cannot be held to be abated against the legal heirs of the plaintiff No. 2 who are not on record. The interest arising out of the suit property or the disputed property are well represented by the legal heirs who are already on the record. However, if a separate application is filed by the plaintiffs in order to bring on record the other legal heirs of the deceased plaintiff No. 2 the same shall be subject to the other provisions under Order XXII Rule 9 of the C.P.C. and the Limitation Act which may be considered by the learned court below. 6. The petition No. 527/2 as recorded by the learned court below was not found in the record by the court below. On verification of the lower court records which is before this court no such petition No. 527/2 nor any order is found in the order sheet. Under such circumstance as hereinabove observed, liberty is granted to the plaintiff to file appropriate substitution petition in so far as the substitution of the legal heirs of the deceased plaintiff No. 2 is concerned. However, the same shall be decided keeping in view the law holding the field. 7. On the other contention regarding disclosure of the names of the legal heirs of the deceased defendants, the court cannot direct the counsel conducting the suit on behalf of the deceased defendants to disclose the names of the legal heirs inasmuch as Order XXII Rule 10A of the C.P.C. stipulates the duty of the pleader to communicate to court the fact of the death of a party and to that extent the contract between the pleader and the deceased party subsists. 8. 8. Here this is a case wherein the plaintiff had knowledge about the death of the said deceased defendants. Under such circumstances, the conducting counsel before this court nor in the trial court cannot be imposed upon the task of collecting the names of legal heirs of the deceased parties he represented. However, if on his own volition, the conducting counsel discloses the names of the legal heirs of the deceased defendants the plaintiffs no doubt, are going to be benefited but that cannot be termed as the duty cast upon the conducting counsel of the deceased party. 9. Be that as it may from the application filed in this revision petition and registered as MC/1103/10, one thing is apparent that the present petitioners who are the plaintiffs and also legal heirs of the plaintiff No. 2 are aware about the names of the legal heirs of the deceased defendants. However, the date of death is not furnished nor it is mentioned in this application for which the same stands dismissed. The suit stands abated against the legal heirs of the said deceased defendants. However, there shall be no bar to file appropriate application by the plaintiffs seeking for setting aside the abatement as required under Order XXII Rule 9 of the CPC along with the delay condonation petition while seeking for substitution of the legal heirs of deceased defendants. Upon such filing of application, the same shall be disposed of by the court below as per prevailing law. With the aforesaid observation, this revision petition stands disposed of. 10. Interim order passed earlier stands vacated. No cost. 11. Send back the LCRs. 12. Both the parties shall appear before the learned court below on 18.12.2019.