Chitta Ranjan Mondal vs Dr. Ram Krishna Ghosh and Another

Prasenjit Mandal, J.—Heard the learned Advocates of both the sides. This application has arisen out of an Order dated March 29, 2012 relating to substitution on the death of the respondent No. 2 before the First Appellate Court, that is, the District Judge, Howrah in Title Appeal No. 246 of 1999.

The plaintiffs/opposite parties herein jointly filed a title suit being Title Suit No. 67 of 1981 against the defendant for eviction on the ground of, inter alia, default, reasonable requirement before the learned Civil Judge (Junior Division), 7th Court, Howrah.

The defendant/petitioner is contesting the said suit and upon consideration of the evidence on record, the learned Trial Judge decreed the suit. Being aggrieved by the said judgment and decree, the defendant preferred an appeal being Title Appeal No. 246 of 1999. That appeal was allowed in part. Thereafter, the plaintiffs preferred a second appeal being S.A. No. 621 of 2007 and the said appeal was admitted. The appeal was heard on August 4, 2011 and the judgment and decree was delivered on August 19, 2011. The Second Appellate Court remanded the matter before the learned District Judge for hearing on the ground of reasonable requirement. At that time it was pointed out that though the second appeal was heard on August 4, 2011, prior to that date, the respondent No. 2 died on May 25, 2011, that is, during the pendency of the second appeal and no prayer for substitution has been sought for. The respondent No. 2 filed an application for substitution under Order 22 Rule 3 of the CPC before the learned District Judge. That application under Order 22 Rule 3 was allowed by the impugned order and this is the subject-matter of challenge before this Bench.

Having heard the submissions of the learned Advocates of both the sides and on perusal of the materials-on-record, I am of the view that since the application for substitution being not within time period of 90 days and not even within the period of setting aside the abatement, the appropriate recourse would have been taken up by the defendant No. 1 who is none but the husband of the respondent No. 2. So, the respondent No. 1 was very much aware of the death of the respondent No. 2. In spite of that no substitution has been sought for. So, the appropriate course would have been under Order 22 Rule 9 of the CPC. But, instead of that, that application under Order 22 Rule 3 was filed and the same was allowed. The impugned order, therefore, cannot be sustained and the same must be set aside.

Anyway, the matter was not placed before this Hon''ble Court while the appeal was being heard before the concerned Bench, inasmuch as, the death took place before the date of hearing as noted above. However, the respondent No. 1 is also an heir of the respondent No. 2 and as such, the suit cannot abate against the respondent No. 2 as a whole and respondent No. 1 can well proceed with the matter.

Mr. Basudev Gayen, learned Advocate appearing for the petitioner, has referred to the decisions of The The State of Punjab Vs. Nathu Ram, and Kartar Kaur and Another Vs. Dhan Kaur and Others, Punjab & Haryana 556 particularly the Paragraph Nos. 3 and 6 and thus, he submits that on the death of one of the respondents the second appeal against the judgment and decree in the suit for possession by plaintiffs as appellants-abatement of appeal against one respondent-appeal became incompetent as a whole and could not be proceeded with as against surviving respondents.

On the contrary, Mr. Asis Bagchi, learned Advocate appearing for the opposite parties, has referred to the decisions of Santosh Kumar Mondal and Others Vs. Nandalal Chakrapani and Others, and Dhannalal Vs. Kalawatibai and Others, and thus, he submits that since one of the representatives is already on record, the suit cannot abate as a whole. In the instant case, I find that the decision of Santosh Kumar Mondal & Ors. (supra) (Full Bench decision of this Hon''ble Court) would be appropriate in the situation and it lays down that where there are more plaintiffs or more defendants than one in a suit and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants and all or several of the plaintiffs or defendants appeal against the decree, the Appellate Court can, in view of the provisions of Order 41 Rule 4, proceed with the appeal and reverse the decree of the trial Court in spite of the omission to bring on the record the heirs of one of the appellants who dies during the pendency of the appeal.

This decision, I hold, will be applicable because one of the landlords could well maintain a suit for ejectment. Therefore, the application under Order 22 Rule 3 of the CPC is not the proper application.

However, this application stands disposed of with the observations indicated above.

The learned District Judge is to proceed with the matter accordingly. Considering the circumstances, there will be no order as to costs.