Calcutta High Court (Appellete Side)
Sri Sanat Manna & Ors vs Smt. Chaya Rani Dhara & Ors on 22 August, 2019
Author: Bibek Chaudhuri
Bench: Bibek Chaudhuri
1
22.08.2019
SA 301 of 2010
With
CAN 7173 of 2017
Sri Sanat Manna & Ors.
-Versus-
Smt. Chaya Rani Dhara & Ors.
For the Appellants: Mr. Amal Krishna Saha,
Mr. Nonigopal Chakraborty.
For the Respondents: Mr. Tarak Nath Halder,
Mr. Satyendra Agarwal.
1. CAN 7173 of 2017 is an application filed by the appellants/petitioners praying for transposition of legal heirs of deceased appellant No.3 Maharani Majhi from the category of appellants to the category of the respondents.
2. Factual background leading to filing of the instant application is narrated below:-
3. The appellants have filed S.A 301 of 2010 assailing a judgment and decree of affirmation passed by the learned Civil Judge (Senior Division), 2nd Court at Howrah in Title Appeal No.89 of 1999 affirming the judgment and order passed in Miscellaneous Case No.14 of 1992 by the learned Civil Judge (Junior Division), 6th Court at Howrah. It is on record that the appeal was admitted for hearing and the same is pending for disposal.
4. It is contended by the appellants/petitioners that during the pendency of the appeal, original appellant No.3, namely Maharani Majhi died on 10th January, 2016. Previously the legal heirs and 2 representatives of the said deceased appellant No.3 filed application for substitution after setting aside abatement of the appeal on condonation of delay which was registered as CAN 8447 of 2016. Subsequently, on 19th April, 2017 another application being CAN 3888 of 2017 was filed on behalf of the legal heirs and representatives of deceased appellant No.3 praying for substitution after setting aside abatement of the appeal as against original appellant No.3 on condonation of delay. The said application, was however, dismissed for non prosecution. Subsequently, the contesting appellants have filed the instant application praying for transposition of legal heirs and representatives of deceased appellant No.3 as proforma respondent.
5. It is pleaded by the appellants/petitioners in the instant application that the legal heirs and representatives of deceased appellant No.3 were not agreeable to execute Vokalatnama as substituted appellants in favour of the learned Advocate for the appellants. Therefore, they may be transposed as respondent in the instant appeal.
6. The contesting respondents have filed an affidavit- in-opposition against the said application for transposition denying all material allegations made out by the petitioners in the said application for transposition. It is specifically contended by the respondents that transposition of legal heirs and representatives of deceased appellant No.3 is not permissible under the law because they have not been brought on record as yet and the instant appeal abates as against appellant No.3.
7. The petitioners in turn filed affidavit-in-reply against the said affidavit-in-opposition reiterating the same 3 stand that was taken by them in the original application for transposition of the parties.
8. I have heard the learned Counsels appearing for the petitioners and the opposite parties. Law is well settled on the point that the Court has the power under Order 1 Rule 10 of the Code of Civil Procedure as well as under section 151 to order transposition of parties for the purpose of complete adjudication of the questions involved. A defendant can be transposed to the category of plaintiff and vice-versa. Apart from Order 1 Rule 10 of the CPC, Order 23 Rule 1A of CPC culls out the circumstance would transposition of defendants as plaintiffs may be permitted. Order 23 Rule 1A is quoted below:-
"When transposition of defendants as plaintiffs may be permitted.- Where a suit is withdrawn or abandoned by a plaintiff under Rule 1, and a defendant applies to be transposed as a plaintiff under Rule 10 of Order 1, the Court shall, in considering such application, have due regard to the question whether the applicant has a substantial question to be decided as against any of the other defendants."
9. It is also well established that the Court has power under Order 1 Rule 10(2) of the CPC to transpose a defendant to the category of plaintiff. The Court can suo motu or on the application of any of the defendant may transpose a defendant as plaintiff and vice-versa. Transposition can be made to do complete justice between the parties and with a view to avoid multiplicity of proceedings.
10. However, in the instant case the factual background is unique. During the pendency of the appeal original appellant No.3 died. After the death of original appellant No.3 her legal heirs and representatives were not brought on record within 4 the statutory period of limitation. Therefore, appeal abates as against appellant No.3. An application for substitution after setting aside abatement on condonation of delay being CAN No.3888 of 2017 was filed on behalf of the legal heirs and representatives of deceased appellant No.3, but it was dismissed for non prosecution. Therefore, the legal heirs and representatives of deceased appellant No.3 have not been substituted as yet as appellants in the instant appeal. As on this date, they are not parties to the appeal. Therefore, question of transposition from the category of appellants to the category of respondents does not arise at all in relation to the legal heirs and representatives of a deceased appellant who is not a party to the appeal as on this date. The question as to whether legal heirs and representatives of a deceased appellant can be transposed after abatement of the appeal on the death of one of the appellants came up for consideration before the Kerala High Court in the case of E.K Abdula Khader vs. Thalakkal Kunhammad reported in AIR 1986 Kerala 3. The Kerala High Court held that only in a pending appeal the respondent can be transposed as an appellant. When the appeal has abated there is no question of transposition.
11. In Rameshwar Prasad and others vs. M/S Shambehari Lal Jagannath and others reported in AIR 1963 SC 1901, a question came up for consideration as to whether an appeal instituted by several appellants will continue on the death of one of the appellants during pendency of the appeal and his legal heirs and representatives not being substituted within the statutory period of limitation resulting in abatement of the appeal, under the 5 provision of Order 41 Rule 4 of the Code of Civil Procedure. The Hon'ble Supreme Court was pleased to hold that the principle behind the provisions of Rule 4 of Order 41 of the CPC, seems to be that any one of the plaintiffs or defendants in filing an appeal as contemplated by the rule, represents all the other non appealing plaintiffs or defendants as he wants the reversal or modification of the decree in favour of them as well, in view of the fact that the original decree proceeded on a ground common to all of them. Where a number of persons have filed an appeal and during pendency of the appeal one of the appellants dies, the surviving appellants cannot be said to have the appeal as representing the deceased appellant. The Hon,ble Supreme Court also held that if in respect of the deceased appellant the appeal has abated and the decree in favour of the respondents has become final against his legal representatives, those not having been brought on record in time, it will be against the scheme of the Code of Civil Procedure to hold that Rule 4 of Order 41 empowers the Court to pass a decree in favour of the legal representatives of the deceased appellant on hearing an appeal by the surviving appellants even though decree against him has become final. The Hon'ble Supreme court, while coming to such conclusion relied upon an earlier judgment in the case of State of Punjab vs. Nathu Ram reported in AIR 1962 SC 89.
12. CAN 3888 of 2017 was filed on behalf of the legal heirs and representatives of deceased appellant No.3 under the provision of Order 22 Rule 9 of the CPC praying for substitution after setting aside abatement of the appeal on condonation of delay. Said application was dismissed for non prosecution.
6The said application was filed because of the fact that right to sue did not survive as against the surviving appellants without the legal heirs and representatives of deceased appellant No.3 being brought on record. I can safely hold that the said application was filed because the right to appeal did not survive to the surviving appellants alone. Now, the appeal having been abated on the death of original appellant No.3, his legal heirs and representatives cannot be brought on record as respondents or proforma respondents under the provision of Order 1 Rule 10 or Order 23 Rule 1A under section 151 of the Code of Civil Procedure.
13. For the reasons stated above, I do not find any merit in the instant application.
14. Accordingly, CAN 7173 of 2017 is rejected on contest, without cost.
Urgent certified website copies of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(Bibek Chaudhuri, J.)