Sk. Ladla vs Asamuddin Ansari

Bhaskar Bhattacharya, J.—This revisional application u/s 115 of the CPC is at the instance of one of the Defendants/Respondents in an appeal preferred by the Plaintiffs against dismissal of a suit for eviction and is directed against order date June 18, 1998 passed by the learned first appellate Court below thereby expunging the name of the Respondent No. 3 from the Memorandum of Appeal.

The Plaintiffs/opposite parties filed a suit for eviction on the grounds of default and reasonable requirement against three Defendants by describing them as heirs of the original tenant, since deceased.

The suit was contested by Defendants No. 1 and 2 by filing joint written statements. But Defendant No. 3 did not appear or contest the suit.

The learned trial Judge ultimately dismissed the suit on contest against Defendants No. 1 and 2 and ex parte against Defendant No. 3.

Being dissatisfied, the Plaintiffs preferred a first appeal being Title Appeal No. 78 of 1996.

During the pendency of the aforesaid appeal, the Defendant No. 3 who was Respondent No. 3 therein died on October 18, 1996 but no application for substitution was filed within the period of limitation for substituting the heirs of the deceased Respondent No. 3.

Long thereafter, sometime in the month of January 1998, the Appellants filed an application for ''expunging the name of the Respondent No. 3 from cause title of the appeal and/or pass such other order or orders'' on the ground that the said Respondent No. 3 never appeared to contest the suit or the appeal.

The aforesaid application was opposed by the contesting Respondents by filing written objection thereby opposing the prayer of the Appellants and their objection inter alia was that the application was not maintainable as the appeal had abated.

By the order impugned, the learned first appellate Court held that the appeal did not abate as a whole and accordingly expunged the name of the Respondent No. 3.

Mr. Ghosh, the learned advocate appearing on behalf of the Petitioner has contended that the learned first appellate Court acted illegally and with material irregularity in holding that the appeal did not abate as a whole. Mr. Ghosh accordingly contends that the learned first appellate Court ought to have recorded the abatement of the entire appeal.

Mr. Ghosh further contends that the application filed by the Plaintiffs could not be even treated as an application under Order 22, Rule 4(4) of the CPC inasmuch as such an application must be filed before the actual abatement had taken place by operation of law. In support of such contention Mr. Ghosh relies upon two decisions of this Court in the cases of Nani Gopal v. Panchanan 59 C.W.N. 304 reported and Annapurna Debi Vs. Sm. Harsundari Dassi and Others,

Mr. Pal, the learned advocate appearing on behalf of the Plaintiffs/opposite parties has refuted the aforesaid contention of Mr. Ghosh and has contended that for non-substitution of the heirs of the deceased Respondent No. 3 the appeal did not abate at all and the appellate Court can set aside the judgment and decree passed by the learned trial Judge by invoking the principles of Order 41 Rule 4 of the Code. Mr. Pal, in this connection, relies upon two decisions, one of the Apex Court in the case of Mahabir Prasad Vs. Jage Ram and Others, and the other of the Full Bench of this Court in the case of Santosh Kumar Mondal and Others Vs. Nandalal Chakrapani and Others, .

As regards the question of maintainability of an application under Order 22, Rule 4(4) of the Code, Mr. Pal contends that the decisions cited by Mr. Ghosh are no longer good law in view of the amendment of the Code by Act No. 104 of 1976. By relying upon the Division Bench decision of this Court in the case of Nisit Mohan Chatterjee in Re: 1993 (1) C.L.T. 338 (H.C.), Mr. Pal contends that after the amendment of the Code, the prayer under Order 22, Rule 4(4) can be made even after actual abatement has taken place.

Therefore, Mr. Pal continues, the Plaintiffs should get benefit of the aforesaid provision of the Code.

After hearing the learned advocates for the parties and after going through the materials on record, I am at one with Mr. Ghosh that for not filing application for substitution of the heirs of the Defendant No. 3, the entire appeal had abated and as such the finding of the learned first appellate Court that the appeal did not abate as a whole cannot be supported. The decisions cited by Mr. Pal on this point have no application to the fact of the present case.

In Mahabir Prosad v. Jage Ram (Supra) the Apex Court held that the power of the appellate Court under Order 41 Rule 4 to vary or modify the decree of a trial Court arises when one of the persons out of many against whom a decree or an order had been made on a ground which was common to him and others has appealed. Such power, according to the Supreme Court, can be exercised when other persons who suffered a decree on a ground which was common to the Appellant and those others are not at all impleaded or impleaded as Respondents.

In the case of Santosh Kumar Mondial v. Nandalal Chakrapani (Supra) it was held by the Full Bench 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 all the Defendants and all or some 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 omission to bring on record one of the Appellants who dies during the pendency of the appeal.

Thus, by taking aid of Order 41, Rule 4 an appellate Court can vary or modify a decree passed on any ground common to all or any of the parties notwithstanding the fact that only some of the parties who had suffered the decree had preferred appeal even though the Appellant has not made other persons who also suffered such a decree parties to the appeal. But the aforesaid provision does not enable an appellate Court to vary or modify a decree where any of the persons in whose favour the decree appealed from is passed is not on record.

In the case in hand, the suit was dismissed against all the three Defendants. Therefore, the appellate Court cannot vary the decree in the absence of one of the Defendants.

In the plaint, the Plaintiffs having claimed recovery of possession from all the three Defendants on me allegation that they are heirs of the original tenant and the appeal having been abated against Defendant No. 3, the appeal abates as a whole. Therefore there cannot be partial abatement of appeal as held by the learned first appellate Court below.

Now the next question is whether the Plaintiffs are entitled to get benefit of the provisions contained in Order 22, Rule 4(4) of the Code notwithstanding the abatement of the appeal.

On this point, I, however, find substance in the contention of Mr. Pal that the two decisions of this Court relied upon by Mr. Ghosh are no longer good law.

As pointed out by the Division Bench in the case of Nisit Mohan Chatterjee in re (Supra), after the CPC (Amendment) Act, 1976 the Court can exempt the Plaintiff or the Appellant from the necessity of substituting the heirs of a deceased Defendant or the Respondent, as the case may be, when such deceased Defendant did not contest in the Court below.

It appears from the record that the application filed by the Appellants before the appellate Court although did not mention the provision of the Code under which the same was filed contained the necessary ingredients of Order 22, Rule 4(4) of the Code and apart from praying for expunging the name of Respondent No. 3, the Appellants prayed for such other or further relief available to them.

Therefore, in the fact of the present case, the learned first appellate Court below instead of expunging the name of the Respondent No. 3 ought to have treated the application as one under Order 22, Rule 4(4) of the Code and passed an order exempting the Appellants from the necessity of substituting the heirs of the deceased Respondent No. 3 as he did not contest either in the trial Court or before the appellate Court.

Therefore, the order impugned is set aside. This Court by accepting the submission of the learned advocate for Respondent treats the application filed by the Plaintiffs before the appellate Court as one under Order 22, Rule 4(4) of the Code and allows the same by exempting the Plaintiffs/Appellants from the necessity of substituting the heirs and legal representatives of the deceased Respondent No. 3 as provided therein.

This Court is quite conscious that the Plaintiffs/Appellants have not filed any counter revisional application against the order impugned herein. But the law is now settled that a High Court sitting in a revisional jurisdiction is competent to see that proper orders are made when a matter comes before it. The mere fact that the Plaintiffs did not move should not stand in the way of this Court making an order in accordance with law as the necessary parties are represented before this Court and have been given opportunities to make submissions on the relevant point. Refer Jatindra Nath Nandi and Others Vs. Krishnadhan Nandi and Another,

Revisional application is thus disposed of in the light of the observation made hereinabove.

No costs.