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2019 DIGILAW 26 (CAL)

Chittaranjan Ghosh v. Gopal Chandra Ghosh

2019-01-08

SAHIDULLAH MUNSHI

body2019
JUDGMENT : Re.: C.A.N. 9842 of 2018 (Substitution); and C.A.N. 9840 of 2018 (Substitution); 1. These are the applications filed on December 11, 2018 by one Pritam Ghosh making composite prayer for substitution of deceased Chittaranjan Ghosh, sole appellant and respondent No. 1, Gopal Chandra Ghosh and respondent No. 2, Krishna Ghosh. 2. The appeal was filed by Chittaranjan Ghosh, since deceased, against the judgment and decree dated July 31, 1998 in Title Appeal No. 21 of 1998 and Title Appeal No. 22 of 1998, affirming the judgment and decree dated December 22, 1997 passed in Title Suit No. 34 of 1988 and Title Suit No. 35 of 1988. 3. The undisputed fact narrated in the application is that the sole appellant Chittaranjan Ghosh died intestate on 5th April 2010. Death Certificate has been obtained from Barrackpore Municipality and annexed herein reveals the date of death. A copy has been obtained on 28th April 2010 and the same has been annexed as Annexure P-1 and Annexure P-2. The petitioners have also annexed a copy of the Death Certificate of Aloy Rani Ghosh, which reveals the date of death of widow of sole appellant Chittaranjan Ghosh on September 14, 2010. Copy of the said Death Certificate was obtained on October 27, 2010 by the present petitioners but no reason shown as to why certified copy of the death certificate was applied for so late. 4. On the day when the applications have been filed, it appears that out of proposed heirs and legal representatives of the sole appellant, Chittaranjan Ghosh, Sikha Ghosh, daughter of late Chittaranjan Ghosh, also died leaving behind her surviving, Pankaj Ghosh as husband and Sm. Prinjal Ghosh, as daughter. 5. The widow of Chittaranjan Ghosh, since deceased, namely, Aloy Rani Ghosh died on September 14, 2010. All the proposed heirs and legal representatives of the said deceased sole appellant have been shown to be major and sui juris. 6. The petitioners, by these applications, have been sought for substitution of the said heirs and legal representatives in place and stead of Chittaranjan Ghosh, sole appellant, since deceased. 7. The petitioners have also made a prayer for substitution of heirs and legal representatives of deceased Gopal Chandra Ghosh, respondent No. 1 and Krishna Ghosh, respondent No. 2. 6. The petitioners, by these applications, have been sought for substitution of the said heirs and legal representatives in place and stead of Chittaranjan Ghosh, sole appellant, since deceased. 7. The petitioners have also made a prayer for substitution of heirs and legal representatives of deceased Gopal Chandra Ghosh, respondent No. 1 and Krishna Ghosh, respondent No. 2. According to the petitioners, the respondent No. 1, Gopal Chandra Ghosh died on November 21, 2001, leaving behind him surviving Mita Ghosh and Priyanka Ghosh, both are daughters and both have since attained majority. The petitioners have also annexed copy of the Death Certificate of Gopal Chandra Ghosh. The petitioners have further stated that the respondent No. 2, Krishna Ghosh died intestate on July 28, 2016 leaving behind her surviving Alpana Ghosh, widow (major), Paramita Khasnabish Ghosh, daughter (major) and Nikita Ghosh, daughter (major). Copy of the Death Certificate to this effect has also been annexed to these applications. 8. In the applications, the petitioners have pointed out that they had no knowledge about the pendency of these instant second appeals before this Honble Court. Only in the execution proceeding, being Title Execution Case No. 9 of 1999 and Title Execution Case No. 10 of 1999, they have got information about the pendency of these appeals that too very recently. 9. According to the petitioners, they requested the learned Advocate conducting the execution cases on their behalf before the Executing Court to take steps before this Honble Court but he refused to do so and ultimately, when the papers were handed-over, it was too late to take out an application for causing substitution of the heirs and legal representatives of the deceased appellant. 10. The applications have been made with a composite prayer for condonation of delay of about 8 years and they have also made a prayer for setting aside abatement, if any, after condonation of delay. 11. In support of such prayer, the petitioners have relied on several decisions in the cases of N. Balakrishnan Vs. M. Krishnamurthy, reported in (1998) 7 SCC 123 ; Ram Nath Sao Alias Ram Nath Sahu and Others Vs. Gobardhan Sao and Others, reported in (2002) 3 SCC 195 ; Prithvi Raj (dead) by LRS. Vs.Collector, Land Acquisition, H.P. and Another, reported in (2005) 12 SCC 198; State of Nagaland Vs. M. Krishnamurthy, reported in (1998) 7 SCC 123 ; Ram Nath Sao Alias Ram Nath Sahu and Others Vs. Gobardhan Sao and Others, reported in (2002) 3 SCC 195 ; Prithvi Raj (dead) by LRS. Vs.Collector, Land Acquisition, H.P. and Another, reported in (2005) 12 SCC 198; State of Nagaland Vs. Lipok Ao and Others, reported in (2005) 3 SCC 752 ; Perumon Bhagvathy Devaswom, Perinadu Village Vs. Bhargavi Amma (Dead) by LRS and Others, reported in (2008) 8 SCC 321 ; Swami Prasad and Another Vs. Lakhan Singh (Dead) and Others, reported in (2010) 15 SCC 152 and S. Ganesharaju (Dead) Through LRS. And Others, reported in (2013) 11 SCC 341 . 12. Relying on the decisions, the petitioners have sought to argue before this Court that length of delay is not a factor but if the petitioner can satisfy the Court by offering reasonable explanation in support of condonation, this Court should condone the delay in filing the application. 13. Most of the decisions cited above are on the Limitation Act with regard to condonation of delay under Section 5. However, the proposition advanced in those decisions is the settled law and is no more disputed. But in the present case the delay in filing the application is since 2010, no explanation has been offered by the petitioners in these applications with regard to the cause as to why the applications could not be taken out within the period of limitation and what are the causes by which they have been prevented to pray for substitution in time and as to why such causes are to be considered as sufficient cause, although, they were contesting the Misc. case arising out of the application under Section 47 of the Code of Civil Procedure as also the execution proceeding pending before the Court below. 14. Mr. Siva Prasad Ghosh, learned Advocate appearing for the respondents submits that the petitioner have suppressed the very fact before this Court that the second appeals are pending before this Court and they had knowledge about the pendency of these second appeals, but no steps were taken. Even in the applications, they have discussed that they knew about the pendency of these second appeals before this Court. Mr. Even in the applications, they have discussed that they knew about the pendency of these second appeals before this Court. Mr. Ghosh submits that time again they prayed for time before the learned Court below by filiing applications for adjournment on the ground that they would bring stay order from the High Court and if that be so, it cannot be said that they had no knowledge about the pendency of these second appeals. 15. On perusal of the objections, which were filed by Mr. Ghoshs client before the Executing Court it appears from paragraph 6 thereof that the petitioners took adjournment on the ground that the second appeals are pending before this Court and they would bring an order of stay from the Honble High Court. Paragraph 6 of the written objection states about the said fact and no explanation has been offered in the present applications as to why the petitioners knowing fully well that the appeals are pending before the High Court and they were claiming their interest through the appellant Chittaranjan Ghosh, did not take steps for substitution. Even in the application filed under Section 47 of the Code they ventilated their grievance against the judgment and decree appealed against and they raised question to be decided by the Executing Court in connection with the judgment and decree appealed against in these second appeals. 16. It is very difficult to believe that a person pursuing his right, title and interest over the suit property arising out of a judgment and decree directly involved in the execution case had no knowledge about the present appeals. When admittedly in the said application the sole appellant died on April 2010 and all through out the legal heirs of the sole appellant contested the Misc. case in the Court below as well as the execution case taking the risk of not taking the steps for substitution in the appeal. Therefore, natural consequence, which is to follow, is that the appeal should abate and the appeal has in fact abated long ago. The legal heirs who have come forward now for abatement is only after the application under Section 47 of the Code has been rejected by the learned Court below. It is submitted the revisional application is pending before this Court against the said order of rejection by the Section 47 Court. The legal heirs who have come forward now for abatement is only after the application under Section 47 of the Code has been rejected by the learned Court below. It is submitted the revisional application is pending before this Court against the said order of rejection by the Section 47 Court. Therefore, I do not find any reason to condone the delay in absence of proper explanation to the effect that they were prevented by any cause to file an application for substitution far less to say sufficient cause, before this Court for substitution of the legal heirs and representatives of the deceased sole appellant. The application appears to be misconceived. The explanation sought to be advanced, is absolutely mala fide and an attempt to mislead this Court. 17. So far as other prayer for substitution of the respondent is concerned, it need not be discussed, inasmuch as I am not convinced about the condonation of delay by allowing the prayer for substitution of the appellant. However, it may be mentioned that from the applications, it appears that the respondent No. 1 died on March 21, 2001 when the appellant was alive. No explanation has at all been offered as to why even the predecessor in interest of the appellant/petitioner could not take any steps to file application for substitution of the respondent No. 1 during his life time, therefore, the appeal also abated long ago against respondent No. 1. 18. So far as other prayers are concerned, it need not be considered in view of the decision, which is being passed in this application. The petitioners have completely failed to satisfy this Court on the given fact that they were innocent and as a result of which they could not take out an application, therefore, the prayer for condonation of delay as also the prayer for substitution is disallowed. 19. The applications, being C.A.N. 9842 of 2018 and C.A.N. 9840 of 2018 are rejected. 20. Urgent photostat certified copy of this order, if applied for, be given to the parties, on priority basis.