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2020 DIGILAW 456 (CAL)

Shyamsundar Dutta v. Sovarani Dutta

2020-03-20

BIBEK CHAUDHURI

body2020
JUDGMENT Bibek Chaudhuri, J. - CAN 5468 of 2016 is an application filed by one Ram Chandra Dutta, appellant No.2 (hereafter described as the applicant) stating, inter alia, that during pendency of this appeal the sole respondent died on 1st November, 2013. The applicant came to know about the date of death of the sole respondent from her Advocate on 24th July, 2014. Immediately he requested the learned Advocate for the respondent to furnish the names and addresses of the legal heirs and representatives of the sole respondent, since deceased. Learned Advocate for the respondent, since deceased supplied the names of the legal heirs and representatives of the deceased respondent by a letter dated 11th May, 2016. Subsequently on 6th June, 2016 the appellant No.2 has filed the instant application praying for substitution of the deceased respondent No.1 by her legal heirs and representatives. 2. On 19th January, 2017 the appellant No.2/applicant has filed another application which was registered as CAN 618 of 2017 praying for setting aside abatement of the appeal due to the death of the sole respondent on 24th July, 2014 on condonation of delay of 826 days. It is pleaded by the applicant in the said application that there was no intentional latches on the part of the appellant No.2/applicant as he was not aware about the date of death of respondent as well as the names and addresses of her legal heirs and representatives he could not file the application for substitution within statutory period of time. As soon as he received the intimation regarding the names and addresses of the legal heirs and representatives of the deceased sole respondent, he filed the application for substitution of the deceased respondent by his legal heirs and representatives. 3. CAN 6576 of 2016 is another application filed by the said appellant No.2/applicant praying for setting aside abatement for non-substitution of sole respondent, since deceased, by his legal heirs and representatives. CAN 6575 of 2016 is another application under Section 5 of the Limitation Act praying for condonation of delay in making the application for setting aside of abatement of appeal. 4. All the applications were taken up together for hearing as in all the above mentioned applications almost common prayer for substitution of legal heirs and representatives of respondent No.1 for setting aside abatement of the appeal after condonation of delay is prayed for by the appellant. 4. All the applications were taken up together for hearing as in all the above mentioned applications almost common prayer for substitution of legal heirs and representatives of respondent No.1 for setting aside abatement of the appeal after condonation of delay is prayed for by the appellant. 5. On 25th February, 2020 the appellant No.1 has filed a supplementary affidavit stating, inter alia, that he is an orthopedically handicapped person suffering from polio since his childhood. The appellant No.2 Ram Chandra Dutta is the younger brother of appellant No.1 who previously contested the appeal in person because the appellants were not in a position to bear huge financial expenses to continue the appeal by engaging an Advocate. The appellant No.2 as applicant filed the above mentioned application for substitution of setting aside abatement of the appeal and condonation of delay. The appellant No.1 supports the application filed by the appellant No.2 and he declares that the above mentioned applications were filed by appellant No.2 to protect the interest of him as well as the appellant No.2. 6. Mr. Debjit Mukherjee, learned Advocate for the respondent/opposite party, since deceased submits that the applicant is the appellant No.2 in the instant appeal, both the appellants filed the Title Suit No.166 of 1998 praying for declaration and permanent injunction against Sobha Rani Dutta, wife of one Sukumar Dutta, since deceased. One Surobala Dutta, since deceased was the owner of the suit property measuring about 25 decimal of land by purchase from its erstwhile owners Tarapada Mondal and others. Surobala died leaving three sons, namely Sailesh, Ranjit and Gouranga. The plaintiff and the proforma defendant No.2 are the legal heirs of Sailesh, one of the sons of defendant No.1. Sobha Rani Dutta, original defendant was the paternal aunt of the plaintiffs/appellants and the parties reside in the same address as revealed from the cause title of the memorandum of appeal. Therefore, this cannot be believed that the appellants did not know about the date of death of the original defendant. It is also hard to believe that they did not know the names and addresses of the legal heirs and representatives of the defendant, since decease. The appellants were absolutely negligent in filing the application for substitution within time as prescribed in Order 22 Rule 3 of the Code of Civil Procedure read with Article 120 of the Limitation Act. It is also hard to believe that they did not know the names and addresses of the legal heirs and representatives of the defendant, since decease. The appellants were absolutely negligent in filing the application for substitution within time as prescribed in Order 22 Rule 3 of the Code of Civil Procedure read with Article 120 of the Limitation Act. The application for substitution was filed after 966 days in the absence of any sufficient reason shown by the applicant to get such huge delay condoned, the order of abatement and not to be set aside and delay in filing the application for substitution cannot be condoned in support of his contention Mr. Mukherjee refers to a decision of the Honble Supreme Court in the case of Shanti Devi & Ors vs. Kaushaliya Devi reported in (2016) 16 SCC 565. 7. Mr. Mukherjee also refers to a decision of this Court reported in the case of Sri Lalit Mohan Ghosh vs. Lala Netai Chandra Babu & Ors reported in (2015) 4 ICC 556 (Cal) . In the said report it is held by a coordinate bench of this Court that Rule 10A of Order 22 of the Code of Civil Procedure does not cast any obligation upon the Advocate of the deceased party to inform the court all the particulars of the legal representatives of the said deceased party. No penalty and consequence are contemplated under the said rule in default of any failure to comply with the said Rule 10A of Order 22 of the Code of Civil Procedure. Provisions of Order 22 Rule 10A is thereafter not mandatory. Mr. Mukherjee also placed reliance on this judgment to submit that the appellant was aware of the date of death of the respondent and in spite of such knowledge, he did not make inquiry about the particulars of the legal representatives of the said deceased respondent. Therefore, he cannot maintain an application under Sub-rule (5) of Rule 4 of order 22 of the Code for setting aside abatement of the appeal against the deceased respondent. 8. Mr. Mukherjee next submits that while condoning the delay the court is entitled to take liberal approach to see as to whether the petitioner was prevented by sufficient cause in making application within the statutory period of limitation. But such liberal construction cannot be equated with doing injustice to other party. 8. Mr. Mukherjee next submits that while condoning the delay the court is entitled to take liberal approach to see as to whether the petitioner was prevented by sufficient cause in making application within the statutory period of limitation. But such liberal construction cannot be equated with doing injustice to other party. This balance has to be kept in mind by the Court while deciding such applications. Sufficient cause implies presence of legal and adequate reasons in the instant case though the deceased respondent is a new relative of the appellants and they reside in the same address this cannot be believed that the petitioners did not know about the death of the respondent. 9. Mr. Mukherjee has also raised objection regarding maintainability of the applications filed by the appellant No.2 alone. It is submitted by him that the appellant NO.2 has not been authorised by the appellant No.1 to file the applications for setting aside abatement and condonation of delay and substitution of deceased sole respondent. In the absence of such authorisation application filed by one of the appellants are not maintainable. 10. Learned Advocate for the petitioners submits that the appellant No.1 has filed a supplementary affidavit stating, inter alia, that he is suffering from Polio since his childhood. He is orthopedically handicapped person. Appellant No.2 looks after the appeal for self and on behalf of appellant No.1. Under such circumstances, the application cannot be said to be not maintainable. It is also submitted by the learned Advocate for the applicant that appellants did not know the date of death of the respondent or the names and addresses of her legal heirs and representatives. Referring to a decision of the Honble Supreme Court in Bapu Ram vs. Smt. Jhuma & Ors reported in (1983) 3 SCC 186 , it is submitted by the learned Advocate for the appellants that delayed application for substitution of legal representatives after setting aside abatement upon condonation of delay cannot be rejected on the ground that the deceased respondent was a prominent citizen and his death was reported in newspapers. It is contended by the learned Advocate for the petitioners that the same principle is applicable in the instant case. When the parties are not in good terms and they are fighting legal battle it is not unexpected that the appellants did not know the date of death of the respondent. 11. It is contended by the learned Advocate for the petitioners that the same principle is applicable in the instant case. When the parties are not in good terms and they are fighting legal battle it is not unexpected that the appellants did not know the date of death of the respondent. 11. I have heard the learned Advocates for the parties at length. I have also perused the applications. The sole respondent died on 1st November, 2013. The order dated 23rd July 2014 passed by the Honble Tapan Kumar Dutt, J. shows that the learned Advocate for the sold respondent informed the court that the respondent died on 1st November, 2013. The order dated 27th June, 2016 passed by the Honble Ashis Kumar Chakraborty, J. shows that by a letter dated 11th May, 2016 learned Advocate for the deceased sole respondent informed the learned Advocate for the appellant of the death of the sole respondent and the particulars of her legal heirs and representatives. It is also found from the said order that the Honble Judge recorded that immediately upon receipt of the said letter dated 11th May, 2016 the application for substitution was filed by the appellant No.2. However, the said application was filed without any prayer for setting aside of abatement of the appeal which took place after expiry of the period of 90 days from the date of death of the sole appellant. Therefore, the appellants were granted leave to file appropriate application for setting aside of the abatement of the appeal after condonation of delay. The appellants duly complied with the said order. 12. Thus, from the order dated 27th June, 2016, 24th January, 2017, 15th February, 2017 passed by the Coordinate Benches of this Court it is clear that the Court took cognizance of the death of the sole respondent and permitted the appellant to file appropriate application for setting aside abatement of the appeal upon condonation of delay. This court also noticed that the learned Advocate for the appellants received the particulars of the legal representatives of deceased respondent only in the month of May, 2016 and immediately they filed the applications for setting aside the abatement and condonation of delay. Under the facts and circumstances of the present case, the principles laid down in the decision of the Honble Supreme Court relied upon by Mr. Under the facts and circumstances of the present case, the principles laid down in the decision of the Honble Supreme Court relied upon by Mr. Mukherjee, learned Advocate for the deceased respondent is not applicable. 13. Last but not the least, appellant No.1 filed a supplementary affidavit confirming that the applications filed by the appellant No.2 were also filed on behalf of the appellant No.1 and he supports the applications. 14. Therefore I am not in a position to hold that the applications are liable to be rejected as the said applications were not filed by both the appellants. 15. In view of what has been stated above, the applications filed by the appellant No.2 and supported by appellant No.1 are allowed.