Biman Kumar Pal & Others vs Ramjiban Ghosh & Others

Siddhartha Chattopadhyay, J.—Challenging the legality and validity of the order No. 44 dated 03.07.2014 passed by the learned Sub-Divisional Civil Judge, (Junior Division) Ghatal, Paschim Medinipur in connection with Title Suit No. 119 of 2009, the plaintiff/petitioner has filed this revisional application. A bunch of applications were disposed by the impugned order viz. petition dated 30.07.2013, 23.08.2013 and 2.12.2013.

According to the petitioner, learned Trial Judge should have rejected the application dated 30.07.2013 and should have allowed his application under Order 22, Rule 4 (4) of the Code of Civil Procedure.

Contents of application dated 30.07.2013 was such that proforma defendant no. 5 (Pannalal Mitra) died on 19.03.2013 and defendant No. 6 (Jaharlal Mitra) died on 28th Phalgun 1418 and as substitution has not been made suit may be abated. The said application was filed by the defendant No. 1.

Contents of application dated 02.12.2013 filed by the plaintiff under Order 22, Rule 4 (4) of the Code of Civil Procedure is such since defendant Nos. 5 and 6, in spite of receiving summons, did not file written statement nor contested the suit, so there is no question to abate the suit and prayed for expunging their names from the plaint. As against this defendant No. 1, filed a written objection and according to him, the abatement will take place automatically if substitution is not made within time. In the suit plot the proforma defendant Nos. 5 and 6 are the co-sharers and so substitution was necessary. In the interest of effective adjudication, Order 22, Rule 4 (4) of the Code of Civil Procedure is to be read along with Order 22, Rule 4 (5) of the Code of Civil Procedure. Order 22, Rule 4 (4) of the Code of Civil Procedure speaks�"[(4) The Court, whenever it thinks fit, may exempt the plaintiff 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, and judgment may, in such a case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place.

Order 22, Rule 4 (5) of the Code of Civil Procedure speaks�

(5) Where -

(a) The plaintiff was ignorant of the death of a defendant, and could not, for that reason, make an application for the substitution of the legal representative of the defendant under this rule within the period specified in the Limitation Act, 1963, (36 of 1963), and the suit has, in consequence, abated, and

(b) The plaintiff applies after the expiry of the period specified therefor in the Limitation Act, 1963 (36 of 1963), for setting aside the abatement and also for the admission of that application under Section 5 of that Act on the ground that he had, by reason of such ignorance, sufficient cause for not making the application within the period specified in the said act, the Court shall, in considering the application under the said Section 5, have due regard to the fact of such ignorance, if proved.]

In course of hearing learned Counsel appearing on behalf of the petitioner has referred to a ruling reported in 1999 (1) CLJ Page 58, (Sk. Ladla v. Ashamuddin Ansari & Ors.) while passing the said verdict, a Co-ordinate Bench of this Court had considered the decisions reported in (1) Nani Gopal v. Panchanan, 59 CWN Page 304, (2) Annapurna Devi v. Harasundari Devi & Ors., AIR 1975 Cal-12, (3) Mahabir Prasad v. Joga Ram, AIR 1971 SC 742, (4) Santosh Kumar Mondal v. Nandalal Chakrapani & Ors. AIR 1963 Cal-289, (5) Nisit Mohan Chatterjee CLT (1993) (1) HC 338, (6) Jatindra Nath Nandy v. Krishnadhan Nandy, AIR 1953 Cal-34 and came to the finding that the Court can exempt the party from substituting, if the deceased did not appear and contest. So the Court''s power was not curtailed for exemption of a party from substituting a person, who never appeared before the Court or contested the proceeding. This Court likes to consider the provision of Order 22, Rule 4 (5) as a whole. In the said clause, it is specifically mentioned that if ignorance is pleaded and if it is proved then substitution of the legal representative of the defendant can be made. In the application under Order 22, Rule 4 (5) the plaintiff specifically pleaded his ignorance. In the written objection filed by the defendant No. 1, the said plea of ignorance was not challenged. Therefore, the fact of such ignorance, in my view, is proved.

Learned Court below did not consider the provision under Order 22, Rule 4 (4) and Order 22, Rule 4 (5)(b) of the Code of Civil Procedure in its proper perspectives. Upon a conjoint reading of provisions, it seems to me that the Court below may exempt the plaintiff from substituting, if it is not done in that case, and if ignorance is pleaded and there is no challenge on the part of the opposite party, learned Court below ought to have given him a chance to substitute the legal representative. Finding of the learned Court below is erroneous. Accordingly, the revisional application succeeds. The impugned order passed by the learned Court below is hereby set aside.

Learned Court below shall give an opportunity to the plaintiff to expunge the name of the proforma defendant Nos. 5 and 6, who neither appeared before the learned Trial Court nor filed any written statement or to allow substitution if such application is filed.

In the result, the revisional application is allowed but without any cost.

Let a copy of this judgment be sent to the learned Court below for his information and taking necessary action in accordance with law.

Urgent certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.