Calcutta High Court
Jagdish Chand Kapur & Ors vs Joginder Chand Kapur & Ors on 21 July, 2016
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
O-861
GA No.3258 of 2015
CS No.108 of 2003
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
JAGDISH CHAND KAPUR & ORS.
-Versus-
JOGINDER CHAND KAPUR & ORS.
Appearance:
Mr. Sakya Sen, Adv.
Ms. Nilanjana Addy, Adv.
...for the plaintiff.
Mr. Ratnanko Banerjee, Sr. Adv.
Mr. Shaunak Mitra, Adv.
Ms. Ranjabati Sen, Adv.
Ms. Sanjay Jhunjhunwala, Adv.
...for the defendant Nos.2-7.
Mr. Aritra Basu, Adv.
Mr. A. Agarwalla, Adv.
Ms. F. Nasim, Adv.
...for the defendant Nos.8-12.
BEFORE:
The Hon'ble JUSTICE SANJIB BANERJEE
Date : July 21, 2016.
The Court : The legal issue sought to be canvassed - the extent and effect of abatement in a partition suit - appears to be redundant in the light of an order of December 17, 2015 passed in this suit subsequent to the institution of the present application by the defendant Nos.2 to 7 for the dismissal of the suit.
Indeed, much of the law cited on behalf of the defendant Nos.2 to 7 does not call for any detailed discussion. The obvious laches on the part of the plaintiffs in prosecuting the partition 2 suit of 2003 may also not be relevant in the present context since the delay in lodging the writs of summons has been condoned and the appearing plaintiffs confirm that the summons have been served on several of the defendants.
Twelve plaintiffs filed the partition suit. The plaintiff No.5 died on September 26, 2006. He was survived by his parents, the first and second plaintiffs, and his widow and children, the plaintiff Nos.6, 10, 11 and 12. Thus, since all the heirs of the deceased plaintiff No.5 were already on record at the time of the death of the plaintiff No.5, there could have been no abatement on the ground of the death of the plaintiff No.5, though the recording of his death was not done prior to today.
The plaintiff No.1 died on July 19, 2007 and his heirs have been brought on record pursuant to a substitution application, G.A.No.3827 of 2015, which was allowed by the order of December 17, 2015. Similarly, the plaintiff No.2 died on January 2, 2014 and the substitution in such regard has also been effected by the order dated December 17, 2015. In between, the first defendant died on October 24, 2012 and he has also been substituted by his heirs as permitted by the order of December 17, 2015.
Prior to the application for substitution being filed, the suit was dismissed for default by an order dated May 5, 2014. Upon some of the plaintiffs applying for the restoration of the suit, an order was passed on March 2, 2015. The opening line of such order 3 recognised the application to be one of the plaintiff Nos.3, 4, 7, 8 and 9 and the nature of the application to be one for recalling the order dated May 5, 2014.
It is necessary to only notice the operative part of the order dated March 2, 2015:
"Under such circumstances, the suit is restored as against (sic, regards) the applicants. The order is restricted to the applicants only. Mr. Banerjee learned Senior Counsel has submitted on instruction that some of the plaintiffs have died during the pendency of the suit and suit has abated against them. Such points are left open and may be agitated at the appropriate stage. Accordingly, there shall be an order in terms of prayer
(a). The suit is restored in so far as the applicants are concerned. The time to lodge the writ of summons by the applicants is extended by two weeks from date. Since no affidavit is called for the allegations made in the petition are deemed not to have been admitted. This application, accordingly, stands disposed of."
The application for substitution was filed several months after the order of March 2, 2015. Paragraph 3 of the application, filed by the same plaintiffs who had obtained restoration of the suit, referred to the death of the plaintiff No.5, the plaintiff No.1, the plaintiff No.2 and the defendant No.1 and also the named the heirs of the relevant parties. Paragraph 11 of such application contended that there could not have been any abatement in a suit for partition and also sought the abatement, if any, to be set aside. The prayers in the application were for carrying out certain amendments and the amendments were for substituting the 4 deceased parties and for change of name of one of the company defendants and the reference to the parties in the body of the plant in the changed scenario. Such application was allowed by an order of December 17, 2015. The first and penultimate paragraphs of the relevant order are of some relevance and are set out herein:
"This is an application for amendment of the plaint. The applicants have filed a suit in the nature of partition of assets and properties belonging to Kapur family. The petitioners say that this application has been filed to record the deaths of the original plaintiff nos.1 and 2 and for substitution of the legal heirs of the said plaintiffs. Similarly, consequent upon the death of the original defendant no.1, the legal heirs or representative of the defendant no.1 is brought on record. The other amendments relate to change of the names and addresses of few of the companies.
*** *** ***
Under such circumstances, there shall be an order in
terms of prayer (a) of the Notice of Motion. The department is
directed to carry out the amendment within one week after
reopening of the Court. Leave is given to correct and reaffirm
the plaint within the aforesaid period. There shall also be an
order in terms of prayer (d)."
Thus, it is evident that notwithstanding the misleading prayers in the application, the Court was alive to the fact that the application was to record the death of some of the parties and to have the heirs of the deceased parties brought on record. To repeat, paragraph 3 of the relevant application referred to why no substitution was immediately necessary upon the death of the plaintiff No.5 since all his heirs were already on record. The 5 reference to the plaintiff No.5 is, thus, not made in the order of December 17, 2015.
The applying defendants contend that since the suit was revived qua some of the plaintiffs and not all of them, the suit is ineffective and cannot be proceeded with. The applying defendants seek a formal order for the dismissal of the suit. It is also submitted on behalf of the applying defendants that the suit stood abated long before the order dated December 17, 2015 was passed and since the abatement was not specifically set aside, the mere substitution of the long deceased parties by their heirs would not cure the fatal mistake on the part of the surviving plaintiffs. The other limb of the applying defendants' contention is that since the suit was revived only as regards some of the plaintiffs, in the absence of the plaintiffs in respect of whom the suit has not been revived, the partition suit cannot be proceeded with. The applying defendants say that all co-sharers of joint properties are necessary parties to a partition suit and since the suit has only been revived as regards some of the plaintiffs and not as regards all, the suit has necessarily to fail for the other plaintiffs not being parties thereto.
The applying defendants cite the law on abatement and its applicability to a partition suit. A judgment reported at AIR 1951 Nagpur 434 has been placed. Paragraph 28 of the report is instructive. Three other judgments have been carried on behalf of 6 the applying defendants: those reported at 24 CWN 44; AIR 1962 SC 89; and, 2006(6) SCC 569. The judgments indicate that if a suit or appeal cannot go on for want of any necessary party, consequent upon the death of a party and abatement setting in, the suit or the appeal would fail.
In this case, the order dated March 2, 2015 intended that the suit would stand revived. It cannot be said that the order dated March 2, 2015 did not intend the suit to revive, since the order would then have to be regarded as meaningless. In such order providing for the suit to be revived as regards the applying plaintiffs, it only deprived the other plaintiffs who had not sought recalling of the order of dismissal of the suit of the carriage of proceedings. In other words, it was still open to those plaintiffs as regards whom the suit was revived to subsequently apply for the recalcitant plaintiffs who had not applied for recalling the order of dismissal of the suit to be transposed or even added as defendants to the action and pursue the action.
There is a line in the order dated March 2, 2015 that preserved the rights and objections of the applying defendants herein. However, in the substitution matter being allowed by the order dated December 17, 2015 upon the applying defendants herein being heard, the grounds of objection that had been kept alive by the order dated March 2, 2015 were dealt with conclusively. 7 Without meaning any disrespect, it was for the applying defendants to indicate to the Court at the time that the order dated December 17, 2015 was passed that the suit stood abated long before the application for substitution was made, that no grounds explaining the delay in applying for setting aside the abatement had been indicated; and, that the previous conduct of the applying plaintiffs did not warrant any further generosity to be shown to them. It was open to the applying defendants herein to urge such grounds and in such defendants either not urging such grounds (as there is no reflection thereof in the order) or in urging the grounds and such grounds not being entertained, the present application has been robbed of its substance by the order dated December 17, 2015.
The net effect of the orders dated March 2, 2015 and December 17, 2015 is that the plaintiff Nos.3, 4, 7, 8 and 9 can now be the only plaintiffs in this suit and the other original plaintiffs or their heirs as brought in by substitution would have to be arrayed as defendants, for which a formal application has to be carried by the plaintiffs who survive as such pursuant to the orders dated March 2, 2015 and December 17, 2015.
G.A.No.3258 of 2015 is disposed of without any order in view of the previous orders as noticed. There will be no order as to costs.8
All pending applications in this suit will appear a week hence.
Urgent certified website copies of this order, if applied for, be given to the parties, subject to compliance with all requisite formalities.
(SANJIB BANERJEE, J.) A/s.