Calcutta High Court (Appellete Side)
Tandra Bhattacharjee & Ors vs Life Insurance Corporation Of India on 18 May, 2012
Author: Dipankar Datta
Bench: Dipankar Datta
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
Present : The Hon'ble Justice Dipankar Datta
C.O. 957 of 2011
Tandra Bhattacharjee & Ors.
Versus
Life Insurance Corporation of India
For the petitioners : Mr. S. Talukdar, Advocate
Mr. Sudhis Dasgupta, Advocate
Heard on : February 22, 2012
Judgment on : May 18, 2012
1. Life Insurance Corporation of India (hereafter the Corporation), the
opposite party herein, is presently the owner of "Metropolitan Building" at
7, Jawaharlal Nehru Road, Kolkata - 700013.
2. Metropolitan Building was earlier owned by Metropolitan Insurance
Company Pvt. Ltd. Its Managing Director, Debendranath Bhattacharya
(since deceased), had granted a monthly tenancy of flat no. 3, situate on
the second floor of Metropolitan Building (hereafter the said flat) in favour
of his wife Sovana Bhattacharya (since deceased). It was after the
nationalization of private insurance companies in 1956 that the
Corporation became the owner of Metropolitan Building and Smt. Sovana
Bhattacharya a monthly tenant under it in respect of the said flat.
3. The Corporation had approached the Estate Officer under the Public
Premises (Eviction of Unauthorized Occupants) Act, 1971 (hereafter the
Act) seeking eviction of Smt. Sovana Bhattacharya from the said flat on the
ground that she was an unauthorized occupant thereof. Case No.
E.O./173/0898 (hereafter the said case) was registered. During the
pendency of the said case, Smt. Sovana Bhattacharya (hereafter the
original respondent) passed away. All the heirs and legal representatives of
the deceased were brought on record of the said case as respondents.
4. The said case stood terminated by a final order dated February 28, 2003 of the Estate Officer, who directed eviction of the respondents.
5. One of the heirs of the original respondent in the said case was her son, Sri Botuknath Bhattacharya (hereafter the appellant). He carried the order of eviction in an appeal under Section 9 of the Act before the City Civil Court at Calcutta. The appeal was registered as Misc. Appeal No. 19 of 2003 and assigned to the learned Judge, 13th Bench of the said Court. Other heirs and legal representatives of the original respondent, who were brought on record of the said case as substituted respondents, were arrayed in the appeal as proforma respondents by the appellant.
6. In connection with the said appeal, the appellant filed an application for stay on March 28, 2003. The learned Chief Judge, City Civil Court at Calcutta was pleased to grant stay, as prayed for.
7. It is not in dispute that this Hon'ble Court while hearing C.O. 2268 of 2003 has been pleased to appoint a receiver in respect of the said flat.
8. During pendency of the appeal, the appellant passed away on April 4, 2004. After the death of the appellant, the petitioners in this revisional application (being some of the substituted respondents in the said case) along with two others (Timirari Bhattacharya and Dibakar Bhattacharya) filed an application on July 8, 2004 for substitution in place and stead of the appellant. However, the said application was not pressed. Instead, on July 8, 2005, the petitioners and the said Timirari and Dibakar and others filed an application under Order 1 Rule 10(2) of the Code of Civil Procedure for their transposition as appellants in Misc. Appeal No. 19 of 2003. It is noticed that Timirari and Dibakar have passed away on March 4, 2007 and November 1, 2009 respectively.
9. In the meanwhile, on April 13, 2007 an application under Order 22 Rule 3 Code of Civil Procedure was filed by one Rajashree Mukherjee for her substitution in place and stead of the appellant in Misc. Appeal No. 19 of 2009.
10. It was in the aforesaid factual background that an order was passed on August 20, 2010 by the learned Judge of the 13th Bench of the said Court. The application under Order 22 Rule 3 of the Code filed on April 13, 2007 was dismissed on the ground that the appeal had abated. Since none had appeared to move the application under Order 1 Rule 10(2) of the Code dated July 8, 2005, the same was also dismissed on the ground that the appeal had abated.
11. An application under Section 151 of the Code was filed by the petitioners praying for recall of the order dated August 20, 2010. By an order dated November 9, 2010, the learned Judge directed the application to be kept with the record and to be put up when moved.
12. Order dated August 20, 2010 is now under challenge in this revisional application.
13. Mr. Talukdar, learned senior advocate appearing for the petitioners contends that the learned Judge erred in the exercise of his jurisdiction in dismissing the application under Order 1 Rule 10(2) of the Code. According to him, the estate of the original respondent was being represented by her heirs and legal representatives, who were already on record of Misc. Appeal No. 19 of 2003; hence question of the appeal having abated did not arise. Reliance was placed by Mr. Talukdar on the decision of the Supreme Court reported in AIR 1971 SC 742 (Mahabir Prasad v. Jage Ram) in support of his submission that the appeal did not abate since the legal representatives of the original respondent were already on record. Reliance was also placed on the decision reported in AIR 1994 SC 1199 (Smt. Gema Coutinho Rodrigues v. Bricio Francisco Pereira and ors.) for the proposition that where one heir has been brought on record substantially representing the deceased plaintiff, the suit does not abate and the right to sue survives or vests in that heir. Reference has also been made to the decision of the Madras High Court reported in AIR 1934 Madras 730 (2) (Muthuraman Chettiar v. Adaikappa Chetty and ors.).
14. The opposite parties despite notice have not appeared. However, I do not find any force in the submissions of Mr. Talukdar and must hold, for the reasons assigned hereafter that this revisional application is without merit.
15. It is true that upon the death of the original respondent, her estate was sought to be represented by her heirs and legal representatives and that they had a common defence in the original proceedings. Once the order of eviction was carried in appeal under Section 9 of the Act by the appellant in his individual capacity and not in the capacity of one who was representing the estate of the original respondent, he was dominus litis and had the right to control the proceedings. The claim in the appeal was personal to the appellant. In terms of the provisions of the Code, death of the party initiating the proceedings, in the absence of a prayer for substitution within time, would result in abatement thereof. Once the proceedings abate, law provides for setting aside of abatement and if abatement is set aside, those who are substituted in place and stead of the deceased may continue the proceedings initiated by the deceased.
16. Here, in the present case, the appeal was allowed to abate. As noted earlier, an application under Order 22 Rule 3 of the Code had been filed. Such application was dismissed on the ground that the appeal had abated and no prayer for setting aside abatement had been made. The application for transposition filed by the petitioners was also dismissed on the ground that the appeal had abated. If no lis was surviving, the Court could not have entertained the application for transposition.
17. In my view, if at all Rajashree Mukherjee applies for recall of the order dated April 13, 2007 with the prayer for setting aside abatement and her prayers are allowed resulting in substitution in place and stead of the appellant, the lis would revive and only then could the petitioners seek their transposition as appellants, with Rajashree Mukherjee as the substituted appellant. Alternatively, the petitioners, if at all they can seek substitution according to law in place and stead of the appellant, may apply together with a prayer for setting aside of abatement and if their prayers are allowed, they may continue the proceedings.
18. I have considered the decisions cited by Mr. Talukdar. None of the decisions have any relevance having regard to the facts in the present case.
19. The revisional application is without merit. This revisional application stands dismissed without costs.
Urgent photostat certified copy of this order, if applied for, shall be furnished to the applicant at an early date.
(DIPANKAR DATTA, J.)