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2019 DIGILAW 656 (CAL)

Arabinda Dhibar v. Bindabala Karmakar

2019-06-21

BIBEK CHAUDHURI

body2019
JUDGMENT : 1. CAN 7769 of 2017 is an application filed by respondent No.1-3/applicants praying for recording abatement of the instant appeal. 2. For proper disposal of the instant application it is necessary to state the following factual background:- 3. One Bindabala Karmakar and her sons and daughters, being legal heirs and representatives of one Prafulla Chandra Karmakar, since deceased filed a suit for declaration, cancellation of purported sale deeds executed in favour of the father of the defendants/appellants and in the alternative for pre-emption of the suit property mentioned in schedule-B of the plaint. The suit was filed in the 3rd Court of the learned Civil Judge (Junior Division), Asansol and registered as Title Suit No.115/1996. The trial court dismissed the suit on contest. The plaintiffs (six in number) preferred an appeal against the said judgment and decree of dismissal of Title Suit No.115 of 1996 in the Court of learned Civil Judge (Senior Division) Asansol. The said appeal was registered as Title Appeal No.17 of 2001. 4. After hearing, the learned Judge in 1st Appellate Court allowed the appeal and remanded the suit back to the trial court for fresh trial with certain directions. 5. The original defendants of the suit challenged the judgment and order of remand passed in Title Appeal No.17 of 2001 before this Court by preferring FMAT 1116 of 2003. 6. By an order dated 1st September, 2003 the Division Bench of this Court admitted the appeal for hearing and the same is renumbered as 1621 of 2003. 7. The record further shows that the appellants were directed to file requisites for service of notice of the appeal upon respondent Nos.5 and 6, but they failed. 8. On 8th February, 2017 the Division Bench of this court passed the following order in respect of service of notice upon respondent Nos.5 and 6:- "None appears If the requisite under report is not file within fortnight from today, the appeal shall stand dismissed against the respondent Nos.5 and 6." 9. subsequently formal order of dismissal of the appeal as against respondent Nos.5 and 6 was recorded vide Order dated 6th March, 2007." 10. subsequently formal order of dismissal of the appeal as against respondent Nos.5 and 6 was recorded vide Order dated 6th March, 2007." 10. It is contended by the applicants that in view of dismissal of the appeal as against respondent Nos.5 and 6, entire appeal abates since the respondents' interest over the suit property is joint and not severable; dismissal of appeal as against respondent Nos.5 and 6 renders the entire appeal abated as against all the respondents. Accordingly the applicants have prayed for recording abatement of the appeal as a whole. 11. The applicants filed affidavit-in-opposition against the aforesaid application denying material allegations made out by the applicants. It is specifically pleaded by the appellants that the instant miscellaneous appeal was preferred against six respondents. The judgment impugned was a judgment of remand of the suit. Dismissal of the appeal as against some of the respondents for non compliance of court's order by the appellants does not render entire appeal nonest and infructuous. As the appeal is still maintainable as against respondents Nos.1-4, therefore, the appellants have prayed for rejection of the application filed by the respondent Nos.1-3/applicants. 12. The applicants in turn, filed affidavit-in-reply reiterating their claim of recording abatement of the appeal. 13. I have heard learned Counsels for the applicants and the opposite parties. 14. Order 22 of the Code of Civil Procedure deals with the effect of death, marriage and insolvency of the parties. In case of death of any of the parties to the suit or appeal, it is incumbent upon the adversary to substitute the legal heirs and representatives of the deceased plaintiff/defendants/appellant/respondent, as the case may be, within stipulated period of time, failing which the suit or appeal automatically abates. 15. Order 22 rule 2 lays down the procedure where one of several plaintiffs or defendants dies and right to sue survives. The provision runs thus: "Where there are more plaintiffs or defendants than one, and any of them dies, and where the right to sue survives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the Court shall cause an entry to the effect to be made on the record, and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants. Rule 3 of Order 22 deals with the situation where the right to sue does not survive wholly to the surviving plaintiff or plaintiffs, the suit shall abate under Rule 3(2) so far as the deceased plaintiff is concerned. Order 22 Rule 4 lays down the procedure in case of death of one of several defendants or of sole defendant. Order 22 Rule 9(1) of the CPC states, "Where a suit abates or dismissed under this order, no fresh suit shall be brought on the same cause of action." 16. In the instant case, this court did not record dismissal of the appeal as against respondent Nos.5 and 6 under any of the provisions of Order 22 of the CPC. The appeal was dismissed as against the said respondents for noncompliance of the court's order and failure on the part of the appellants to file requisites for service of notice upon them. It is to be born in mind that respondent Nos.1-4 as well as respondent Nos.5 and 6 against whom the appeal is dismissed claimed title over the suit property by inheritance being legal heirs and representatives of one Prafulla Chandra Karmakar. The suit was initially dismissed. The first appeal, preferred by the above named respondent as appellants, were allowed and the suit was sent back on remand for fresh trial. Therefore, no decree was passed in favour of the respondents. The present appeal has been filed under the provision of Order 43 Rule 1(u) of the CPC. The scope of the appeal is limited to consider as to whether the order of remand passed by 1st Appellate Court is correct or not. If this court finds after hearing of the appeal that the order of remand passed by the 1st Appellate Court was not legal, valid and proper, this court will no other alternative but to direct the 1st Appellate Court to dispose of the appeal on merit. In such a case, it is permissible under the provision of Order 41 Rule 4 that one of several plaintiffs or defendants may carry an appeal of whole decree against of the adversaries where it proceeds on grounds common to all. 17. Furthermore, the plaintiffs/respondents/applicants filed the suit for declaration of their title under law of inheritance. Therefore, the right, if any, of the respondents/applicants over the suit property is severable, according to their respective shares. 18. 17. Furthermore, the plaintiffs/respondents/applicants filed the suit for declaration of their title under law of inheritance. Therefore, the right, if any, of the respondents/applicants over the suit property is severable, according to their respective shares. 18. Therefore, it cannot be concluded that in view of recording dismissal of the appeal as against respondent Nos.5 and 6, entire appeal fails and the court is not competent to here out the appeal. 19. In view of the above discussion, I do not find any merit in the application filed by respondent Nos.1-3/applicants and the same is rejected on contest, however, without cost. Urgent certified website copies of this judgment, if applied for, be supplied to the parties subject to compliance with all requisite formalities.