M/s. Loknath Gem & Construction Pvt. Ltd vs Repul Rani Chowdhury & Ors

Biswajit Basu, J

The petitioner has filed Title Suit No. 252 of 2010 in the 2nd Court of Civil Judge, (Senior Division), Barasat, District 24 Parganas (North) for specific performance of an agreement for sale of the suit property.

The defendant nos. 1 and 2 are the vendors and according to the plaintiff the said vendors transferred the suit property during the subsistence of the said agreement for sale in favour of defendant no. 3. The defendant no. 3 informs the learned Court below that the defendant no. 1 is dead.

On the basis of the said information the petitioner filed an application in the Court below for a direction upon the defendant no. 3 to supply the particulars of the heirs and legal representatives of the said deceased defendant no. 1 which was dismissed by the learned trial Judge by the Order No. 41 dated July 27, 2015. The said order was affirmed in C.O. No. 3543 of 2015.

The petitioner thereafter filed an application under Order XXII Rule 4A of the Code praying appointment of Administrator General to represent estate of the defendant no. 1.

The learned trial Judge by the order impugned being Order No. 68 dated March 7, 2019 has dismissed the said application. The defendant nos. 1 and 2 entered appearance in the suit and they have also filed written statement. Neither the learned advocate representing the said defendants in the suit informed the Court below about the death of the said defendant no. 1 which the said learned advocate is obliged to do under Order XXII Rule 10A of the Code of Civil Procedure nor any materials were placed before the learned trial Judge by the parties to the suit evidencing the death of the said defendant no. 1.

In absence of any such material finding of the learned trial Judge in the order impugned that the suit has abated automatically on the death of the said defendant no. 1 for not substituting heirs and legal representatives in the suit is erroneous. Merely because the defendant no. 3 has dropped an information to the Court that the defendant no. 1 is dead, abatement of the suit against the defendant no. 1 should not have been recorded.

The death of defendant no. 1 can only be recorded if sufficient materials are supplied in support of such fact.

Therefore when the death of the defendant no. 1 is in dispute the filing of an application under Order XXII Rule 4A of the Code is wholly misconceived as such the learned trial Judge has rightly dismissed the said application.

C.O. No. 1728 of 2019 is disposed of with the above observations. In the event the petitioner is able to produce sufficient material evidencing the death of defendant no. 1 he is at liberty to take appropriate steps in the suit in accordance with law.

With the above, C.O. No. 1728 of 2019 is disposed of.

No order as to costs.

Urgent Photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.