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Judgment
Subhro Kamal Mukherjee, J.—By the order impugned the learned judge in the lower appellate court rejected the application for substitution filed by the respondent no. 2 consequent upon the death of the sole appellant. The suit was for specific performance of contract. The defendant no. 1, who was the appellant before the lower appellate court, was the original owner.
The respondent nos. 2 to 63 were added subsequently in the suit as subsequent purchasers. They claimed that they were bona fide purchasers for value without notice. However, the plaintiff disputed such contention.
Ultimately, the suit was decreed.
The defendant no. 1 preferred an appeal. The defendant no. 1, namely, Raj Krishna Das, died intestate on March 18, 2003. The respondent no. 2 filed two applications for substitution consequent upon the death of Raj Krishna Das. Those applications were filed on July 23, 2003. The first application was for substitution and the second such application was an application for condonation of delay.
There is no bar for the respondent no. 2 to apply for substitution on account of the death of the appellant inasmuch as CPC permits filing of an application for substitution either by the plaintiff or by the defendant.
The learned judge in the lower appellate court noticed the averments in the application that the respondent no. 2 came to learn about the death of the appellant on June 15, 2003 and it took some time for him to file the applications as he was suffering from typhoid. The learned judge in the lower appellate court held that one such application was described as an application for substitution and not an application for substitution after setting aside abatement.
Heading of the application is immaterial. The substance matters. If there are ingredients explaining the delay of late filing of the application, the court should not reject an application for substitution after setting aside abatement merely because the application was described as an application for substitution only. In fact there was, also, an application for condonation of delay sufficiently explaining the reason for late filing the application for substitution.
Thus, the order impugned is set aside. The applications are allowed. The heirs and legal representatives, that is, the widow, the sons and the daughters, are substituted in stead and in place of the deceased appellant, namely Raj Krishna Das, in the appeal.
However, I am informed that, already, an application under Order I, rule 10(2) of the CPC was filed for transposition of the respondent no. 2 in the category of the appellant.
The learned judge in the lower appellate court by the order impugned, also, rejected such application.
The respondent no. 2 was one of the subsequent purchasers and claimed that he was a purchaser for value without notice. Thus, there was no embargo for transposing him in the category of the appellant along with his heirs and legal representatives of the deceased appellant.
The application filed under Order I, rule 10(2) of the CPC is, thus, allowed. The respondent no. 2 stands transposed as appellant no. 2 in the appeal.
However, the substituted appellant no. 2 shall file his vakalatnama after a fortnight. In default, the order of transposition shall stand recalled.
The revisional application is, thus, allowed.
The learned judge is requested to dispose of the appeal as expeditiously as possible preferably by December 2013. He is authorised not to grant any unnecessary adjournment while disposing of the appeal.
I make it clear that I have not gone into the merits of the claim and the counterclaim of the parties involved in the appeal. All the points for consideration in the appeal are left open. I make no order as to costs.