Calcutta High Court (Appellete Side)
Subir Kumar Mondal & Ors vs Niranjan Biswas & Ors on 17 May, 2013
Author: Tarun Kumar Gupta
Bench: Tarun Kumar Gupta
1
17.05.13
S.A. 43 of 1998
CAN No.203 of 2002
CAN No.4229 of 2002
CAN No.526 of 2012
Subir Kumar Mondal & Ors.
Versus
Niranjan Biswas & Ors.
Mr. Malay Dhar
Mr. Arindam Sen
....for the proforma respondent
Mr. Mrinal Kanti Das Mr. Subhabrata Das Mr. Tapas Kumar Adak ....for the respondents All the three applications were taken up for hearing together. The background of the case may be summarized as follows:-
Present appellants as plaintiffs filed a suit being Title Suit No.444 of 1982 in the Court of learned Munsif, 2nd Court at Baruipur 24 Pgs. (South) praying for declaration of title and permanent injunction in respect of a tank and its banks measuring altogether 2.35 acres. According to the plaintiffs/appellants they along with proforma defendants /proforma respondents were the full owners of the suit property. However, the 2 defendants /respondents contended that they had 2/3rd share in said property and that plaintiffs / appellants and proforma defendants / proforma respondents jointly had remaining 1/3rd share in the suit property. Said suit was dismissed on contest.
The plaintiffs preferred an appeal being Title Appeal No.17 of 1985. After contested hearing said appeal was allowed in part declaring that the plaintiffs / appellants and the proforma defendants/ proforma respondents had 1/6th share each and that the defendants / respondents had remaining 2/3rd share in the suit property. The plaintiffs /appellants have preferred this second appeal against said judgment of learned Lower Appellate Court.
The application being CAN No.203 of 2002 was filed by the proforma defendant /proforma respondents praying for substitution of legal heirs of Niranjan Biswas (defendant / respondent No.1), of Atul Chandra Biswas (defendant /respondent No.4), of Amulya Chandra Biswas (defendant /respondent No.5), all since deceased, after setting aside the abatement on condonation of delay. 3
The application being CAN 526 of 2012 was filed by the same applicants praying for substitution of legal heirs of Niranjan Biswas (defendant / respondent No.1), of Biren Biswas (defendant /respondent No.2), of Atul Chandra Biswas (defendant /respondent No.4), of Amulya Biswas (defendant /respondent No.5), all since deceased, after setting abatement on condonation of delay.
The application being CAN No.4229 of 2002 was application for transposition of proforma respondents in place and instead of plaintiffs/appellants on the alleged ground of abandoning the appeal by the plaintiffs/appellants.
Learned counsel for the defendant respondent No.3 hotly contested all three
applications. Parties filed affidavit-in-opposition and affidavit-in-reply.
I have perused applications and the affidavits filed in connection with those applications as well as the submissions made by the learned counsels of the parties. It appears that 4 one Paritosh Biswas being proforma respondent No.17 has affirmed all three applications. There is no denial that the incidents of death of defendant Nos. 1 , 4 and 5 occurred long back. As their heirs and legal representatives were not brought on record within the stipulated time frame the suit abated against these defendants/ respondents as per law. However, there is no legal bar to bring on record heirs and legal representatives of the parties even beyond prescribed time limit after setting aside abatement on condonation of delay if the petitioners are able to make out a case justifying their prayer for said substitution after setting aside abatement on condonation of delay. The courts are usually liberal in the matter of allowing said applications provided those applications are bona fide. As on account of not bringing on record in time the heirs and legal representatives of a deceased defendant / respondent, the suit abates against that person and a right accrues to the other party, the court should not take away said right already accrued unless it can be shown that the 5 petitioners were not guilty of any latches or that they were prevented from sufficient cause in filing the application in time and that they have come to the Court in clean hands. During hearing it came out that one Paritosh Biswas claiming himself as proforma defendant No.17 has affirmed all said three applications. In the application praying for substitution (CAN 203 of 2002) it was alleged that the petitioners did not know regarding the system of filing of substitution application on death of a party but it came out that before 2002 several substitution applications were filed in Court in connection with the same appeal and were allowed.
It is surprising to note that same person namely Paritosh Biswas (proforma defendant No.17) again filed a fresh application in 2012 (CAN No.526 of 2012) praying for substitution of heirs of those three deceased for whom he already filed an application for substitution long back in 2002, together with the prayer of substitution of heirs of another defendant respondent namely 6 Biresh Biswas (defendant respondent No.2). In the application in 2012 it was alleged that the petitioner learnt about the death of all said four persons only recently and so they were prevented from sufficient cause in filing the application in time. It is just palpable that averments made in said application of 2012 regarding time of knowledge of death of those defendants / respondents were wrong if not false. It further appears from these two applications of substitution that they cannot stand together. The petitioners also made some unfounded allegations against some erstwhile learned advocates of the parties. Those two applications praying for substitution after setting aside abatement and condonation of delay are full of untrue statements if not false statements. As the petitioners have not come to the court in clean hands praying for substitution of the legal heirs of the deceased defendants / respondents after setting aside abatement for condonation of delay, those applications are liable to be rejected.
7
It appears that in the backdrop of the facts of the case as stated earlier the decree which was passed or is capable to be passed is an undivided indivisible decree between the parties as each party was a co-sharer of the suit property having no demarcated portion of share. Again the nature of the property namely tank and its banks shows that the decree, if any, in the backdrop of the facts of the case will be undivided and indivisible. If that be the position then on the ground of not bringing on records heirs / legal representatives of a deceased defendant / respondent in time the suit abated as a whole. So, it appears that the suit already abated as a whole for not bringing on record the heirs and legal representatives of deceased defendants / respondents.
In the application being CAN No.4229 of 2002 the petitioners have prayed for being transposed as appellants in place and instead of original plaintiffs / appellants.
There is no convincing paper to show that the original plaintiffs/ appellants have abandoned 8 the appeal for which the petitioner proforma respondents should be transposed in place of original plaintiffs / appellants. It is true that there is no legal bar for transposing a party from one category to another if situation so demands. But in the case in hand, save and except averments made in the petition that the plaintiffs/ appellants were not interested to proceed with the appeal no convincing valid document was filed to show that the plaintiffs/ appellants have really abandoned the appeal and hence they should be placed in the category of respondents and the present petitioners being some of the proforma defendants / proforma respondents should be transposed to the category of the appellants. Apart from that it came out that for not bringing on record the heirs and legal representatives of some of the principal defendants/ respondents within time the appeal already abated as a whole. If the appeal abates as a whole then as on date the appeal is non-est. The application for transposition is also liable to be rejected on that ground also. During hearing 9 learned counsel for the petitioners refers some case laws but I do not find any application of those case laws in the facts of the present case.
In the case of Sahazada Bi and others vs. Halimabi (2004) 7 SCC 354 it was held that if the interest of the co-defendants are distinct and separate suit would abate only as regards the specific interest of the deceased defendant though all the defendants had been joined together in a single suit. It was held therein that the test is whether abatement of suit only against the deceased defendant and decreeing of the suit against the remaining defendants would result in passing of two conflicting decrees so that enforcement of one would negate enforcement of the other. I have already stated that in the facts of the present case the decree was indivisible and as such the present case law is not of any help to the petitioners.
Learned counsel for the petitioners also referred a case law reported in (2004) 1 CAL LT 79 (HC) (Sencose Food Products Private 10 Limited -vs.- Raj Kumar Sen & Ors.) to impress upon this Court that the court has power at any stage of the proceeding to remedy the defect under order 1 rule 10 of the Code of Civil Procedure by adding the proforma defendants as co-plaintiffs with the appellants. That proposition of law is not disputed but the same is of little help to the present petitioners in the present case.
Learned counsel of the petitioners has also referred a case law reported in AIR 1968 Orissa 230 (Bhismadev Taria and another vs. Radhakishan Agarwalla and others) which also laid down the power of the Court to transpose some defendants as plaintiffs under order 1 Rule 10 of the Code of Civil Procedure. Said proposition of law is not disputed but the same is again of little help to the present petitioners in the backdrop of the facts of this case. Accordingly, I am of the opinion that present petitioners (some of the proforma respondents) have not come to the court in clean hands in making these applications 11 and that all three applications are liable to be dismissed.
It has already been observed that the appeal as a whole has abated.
Let the Lower Court records be returned for further necessary action, if any, at that end.
All three applications stand disposed of accordingly.
Urgent photostat certified copy of this order be supplied to learned counsels of the parties, if applied for.
(Tarun Kumar Gupta, J.)