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2019 DIGILAW 260 (CAL)

JAHAR PAL v. STATE OF WEST BENGAL

2019-02-22

HIRANMAY BHATTACHARYYA

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JUDGMENT : Hiranmay Bhattacharyya, J. 1. The instant application under Article 227 of the Constitution of India is at the instance of the plaintiffs in a suit for declaration of title and for further declaration that the two deeds of gift of the year 2010 were illegal, invalid, void, ab initio and also that by virtue of the said deed no title passed in favour of the defendant nos.4 and 5 and for permanent injunction. 2. During the pendency of the said suit Ajay Pal the defendant no.4 died on April 27, 2016. The plaintiffs took out an application under Order 22 Rule 4 read with Section 151 of the Code of Civil Procedure, inter alia, praying for addition of the minor sons of the deceased defendant no.4 in the said suit. It was further stated in the said application that the wife of the defendant no.4 is already on record as defendant no.5 in the said suit. 3. The learned Trial Judge by an order being no.9 dated August 12, 2016 was pleased to observe that the suit already proceeded ex parte against the defendant and the defendant has no locus standi to contest the suit before vacating the ex parte order against them. The learned Trial Judge was further pleased to fix September 13, 2016 for ex parte hearing of the suit. The hearing of the said suit was further adjourned to 03-12-2016 by the order being no.10 dated September 13, 2016. 4. The plaintiffs thereafter took out an application under Section 151 of the Code of Civil Procedure praying for recalling the orders dated August 12, 2016 and September 13, 2016. The learned Trial Judge by an order being no.13 dated March 20, 2017 rejected the application under Section 151 of the Code of Civil Procedure on the ground that the learned Trial Judge vide Order no.9 and 10 exercised its discretion and exempted the plaintiff from substituting the minor sons of the defendant no.4 as his legal heirs. It was further observed that for substitution of the legal heirs of defendant by the plaintiff there is a specific provision under Order 22 Rule 4 and the plaintiffs cannot seek substitution under Section 151 of the Code before the learned Court below. 5. Mr. It was further observed that for substitution of the legal heirs of defendant by the plaintiff there is a specific provision under Order 22 Rule 4 and the plaintiffs cannot seek substitution under Section 151 of the Code before the learned Court below. 5. Mr. Ghosal learned advocate appearing on behalf of the petitioners submitted that a defendant who has not filed the written statement within the prescribed time limit may subsequently be permitted to file written statement at a later stage on sufficient cause being shown. He further submitted that the Court always retains the right to enlarge the time stipulated by statute and as such there is no reason as to why the heirs of a deceased defendant should not be brought on record as party defendants in place and stead of the deceased defendant no.4. He further submitted that since one of the heirs of the deceased defendant no.4 is already on record as defendant no.5, the other heirs of the said deceased defendant are to be added as party defendants. 6. In support of his argument, Mr. Ghosal relied upon a judgment reported at (Balai Khanra Vs. Shyamal Giri, (2015) 1 CalHN 103 (Cal)). In the said reported case the plaintiffs obtained an exemption under Order 22 Rule 4(4) of the Code of Civil Procedure from substituting the heirs of the deceased defendant. Subsequently, the heirs of the deceased defendant applied for being added as parties to the suit. On such facts it was held by this Hon'ble Court that Order 22 Rule 4(4) of the Code is not a complete bar to the heirs or legal representatives of a disinterested original defendant being entitled to contest the claim. Mr. Ghosal, thus concludes by submitting that even after an order for exemption from substitution under Order 22 Rule 4(4) of the code is passed, the court retains the right to allow an application for substituting the heirs of the deceased defendant. 7. Mr. Soumitra Bandyopadhyay learned advocate appeared on behalf of the opposite party nos.1 and 2 and in his usual fairness did not dispute the submission made by Mr. Ghosal on the point of law. 8. The opposite party nos.3 and 5 are not represented despite service. 9. It appears from the record that the defendant no.4 died on 27-04-2016 leaving behind him surviving his wife and two minor sons. Ghosal on the point of law. 8. The opposite party nos.3 and 5 are not represented despite service. 9. It appears from the record that the defendant no.4 died on 27-04-2016 leaving behind him surviving his wife and two minor sons. The wife is already on record as defendant no.5. An application under Order 22 Rule 4 of the Code was filed by the plaintiffs on 29-06-2016. It further appears from the record that though the hearing of the application under Order 22 Rule 4 of the Code of Civil Procedure was fixed for hearing on 12-08-2016, the learned Trial Judge adjourned the hearing of the suit till September 13, 2016 for ends of justice. The learned Trial Judge, however, did not make any finding with regard to the fate of the application under Order 22 Rule 4 of the Code of Civil Procedure in the said order dated August 12, 2016. The plaintiffs were also not exempted from the necessity of substituting the minor sons of the defendant no.4 by the said order being no.9 dated August 12, 2016. The plaintiffs also did not file any application under Order 22 Rule 4(4) of the Code. 10. A recalcitrant defendant may subsequently be permitted to contest the suit and file the written statement beyond the period envisaged in Order 8 Rule 1 of the Code on sufficient cause being shown. Order 22 Rule 4(4) of the Code of Civil Procedure provides that the Court whenever it thinks fit, may exempt the plaintiffs from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing. The said provision does not put any embargo upon the Court from allowing an application for substitution and/or addition of the heirs of the deceased defendant, against whom the suit is proceeding ex parte. 11. The finding of the learned Trial Judge in the order no.13 dated March 20, 2017 that a party cannot seek substitution under Section 151 of the Code of Civil Procedure is also without any basis as the plaintiffs have filed an application under Order 22 Rule 4 of the Code of Civil Procedure on June 29, 2016. 12. 11. The finding of the learned Trial Judge in the order no.13 dated March 20, 2017 that a party cannot seek substitution under Section 151 of the Code of Civil Procedure is also without any basis as the plaintiffs have filed an application under Order 22 Rule 4 of the Code of Civil Procedure on June 29, 2016. 12. In the instant case the plaintiff has prayed for addition of some of the heirs of the deceased defendant no.4 on the ground that the other heir is already on record as defendant no.5 and the learned Court below acted illegally and material irregularity by not allowing the application under Order 22 Rule 4 of the Code of Civil Procedure for the reasons as aforesaid. 13. In view of the observations made above the Civil Revisional Application is allowed by setting aside the impugned order being no.13 dated March 20, 2017 and by allowing the application dated 29-06-2016 filed by the plaintiffs under Order 22 Rule 4 of the Code of Civil Procedure. 14. The learned Court below is directed to take further steps in terms of this order. 15. There shall be no order as to costs.