Calcutta High Court (Appellete Side)
Hillu Khan vs M/S. Hazi Tayeb Ali & Co on 2 May, 2025
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IN THE HIGH COURT AT CALCUTTA
Civil Revisional Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Biswaroop Chowdhury
C.O. 4074 of 2018
Hillu Khan
VERSUS
M/s. Hazi Tayeb Ali & Co.
For the petitioner: Mr. Krishna Das Poddar, Adv.
Ms. Mandira Barman, Adv.
Mr. Surajit Maity, Adv.
for the opposite party: Ms. Rubina Akhtar, Adv.
Mr. Pianki Ranjan Mitra, Adv.
Ms. Gargi Acharyya, Adv.
Last Heard On: March 17, 2025
Judgment on: May 02, 2025
Biswaroop Chowdhury,J:
The petitioner before this Court is an applicant in a Miscellaneous case
being Misc case 132 of 2011 which is an application under Order IX Rule 13 of
the Code of Civil Procedure seeking to set aside ex-parte decree passed in
Ejectment Suit being No. 1423 of 2001 by the Learned 2nd Bench Presidency
Small Causes Court at Calcutta, and an Appellant in Misc Appeal No-20 of
2016 pending before Learned VIII Bench City Civil Court Calcutta instituted
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against Order of dismissal of Misc Case No-132 of 2011 and is aggrieved by the
Order dated 28-09-2018 passed by the Learned Appellate Court in dismissing
the application made by the appellant/petitioner under Order 39. Rule 1 and 2
read with section 151 of the CPC.
The petitioner being aggrieved by the Order of the Learned Trial Court in
dismissing the application under Order IX Rule 13 of the Code of Civil
Procedure being Misc Case No - 132/2011by order dated 04/03/2016 and
order dated 28/09/2018 passed by Learned Appellate Court in dismissing the
application under Order 39 Rule 1 and 2 of the Code of Civil Procedure filed by
the Appellant/petitioner in Misc Appeal 20 of 2016 has come up with this
application under Article 227 of the Constitution of India.
The petitioner filed an application for setting aside ex-parte decree
claiming her as daughter of the defendant since deceased. By Order dated
4/03/2016 the Learned Trial Court was pleased to dismiss the said application
by observing and directing as follows:
'Perused the record considered the submission of Ld Advocate of both
Sides.
I find from the record that:
The present petitioner Hilly Khan filed a petition under Order 1 Rule 10
(2) of CPC after long period from the death of defendant. She is one of the
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daughter of the sole defendant. My Ld. Predecessor was pleased to reject that
petition on 19/06/03.
Thereafter as per direction of Hon'ble High Court one issue was framed
whether the substituted defendant Hilly Khan has any right to contest the suit
or has any right of inheritance in respect of tenancy in question.'
That issue was disposal on 08/08/05 and it was held that Mrs. Hilly
Khan has no right to contest or right of contest or right of inheritance as she is
not a tenant within the purview of Section 2(h) of WB PT Act of 1956. (vide
Order no. 164, dated 08/08/2005.
The present petitioner challenged that order before Hon'ble High Court.
Hon'ble High Court in CO. no. 3403/05 dated 13/12/05 was pleased to affirm
the order of this Court with further direction to delete the name of the
Administrator General as a party defendant. Hilly Khan was considered to be
present in the suit as the party defendant to the extent of receiving the
belongings of the original defendant since deceased lying in the suit premises.
Thereafter an 18/02/06 Hilly Khan filed the petition praying for realizing
the goods taken at the time of delivery of possession.
On 08/07/11 the suit was decreed exparte.
On 07/09/11 Hilly Khan again filed the petition under Order 9 Rule 13
of CPC with a prayer to allow her to contest in Ejectment suit 1423/01 by
setting aside the ex-parte judgment and decree dated 08/07/2011.
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So it is clear from the case record that it was settled position that Hilly
Khan has no right to contest or right of contest as right to inheritance in
respect of the tenancy in question which was decided on contest and affirmed
by Hon'ble High Court. No one challenged that order in any upper forum. So I
find no ground to allow Hilly Khan to contest in this suit by setting aside ex-
parte order.
Hence ORDERED petition is rejected M/C 142/11 be disposed of an
contest without cost.'
The petitioner being aggrieved by Order dated 04/03/2016 passed by the
Learned Trial Court preferred an Appeal before the Learned Appellate Court.
Along with application under Order 39 Rule 1 and 2 CPC.
The Learned Appellate Court by Order dated 28/09/2018 was pleased to
dismiss the application under Order 39 Rule 1 and 2 of the Code of Civil
Procedure by observing and directing as follows:-
'Perused the materials on record. Considered.
In her application the appellant/defendant/Jdr has prayed for
restraining the respondent from taking possession or disturbing the peaceful
use and enjoyment of the demised premises or alternatively order of stay of the execution of the exparte decree dated 08.07.2011 passed by Ld. Judge 2nd Bench, Small Causes Court, Calcutta in Ejectment Suit no. 1423 of 2001 till disposal of the instant Misc Appeal mainly on the ground that the plaintiff/Dhr 5 by practicing fraud upon the court succeeded in obtaining the exparte decree for Ejectment. On the other hand the respondent/Dhr has raised vehement objection stating the instant application filed by the appellant/defendant is frivouslous, baseless and motivated one.
On careful perusal of the materials on record, it appears that one of the grounds of appeal as narrated in para VI of the memorandum of the appeal "Ld. Court ought to have held that order passed by the Trial court as well as Hon'ble High Court depriving the appellant from contesting the suit was against the principal of natural justice." Now it appears that the Hon'ble Court has been pleased to set the issue whether Hilly Khan has any right to contest the suit at rest. The present position of the appellant as it has been upheld by the Hon'ble Court that Hilly Khan the present appellant has no right to contest or she is not a tenant. Again this appellant has sought to invoke the jurisdiction of this court to get tested the order of the Hon'ble Court even as mentioned in paragraph VI. This being the foundation of the appeal, I think, if the prayer for stay is allowed it would tantamount to judicial indiscipline and misuse of process of law. So I am not inclined to allow the prayer for injunction alternatively stay of execution as prayed for.
Hence the application U/O 39 Rule 1 & 2 read with section 151 of the C.P.C dated 25.04.2016 filed by the appellant stands rejected on contest.
To 19.12.2018 for hearing of the appeal.' 6 The petitioner being aggrieved by the Order dated 28/09/2018 passed by the Learned Appellate Court has come up with thus application under Article 227 of the Constitution of India.
It is the contention of the petitioner that the Learned Appellate Court acted illegally with material irregularity by holding that the petitioner lost her right to contest the suit as a tenant's representative as upheld by this Court. It is further contended that the Learned Court misconstrued the findings of this Court in CO No-3493 of 2005. It is also contended that the Learned Lower Appellate Court has acted illegally and whimsically by overlooking the Order of this Court where this Court directed to struck out the name of Administrator General from cause title of the suit.
Heard Learned Advocate for the petitioner and Learned Advocate for the opposite party perused the petition filed and materials on record. Learned Advocate for the petitioner submits that the prayer before Learned Appellate Court was very much innocuous and a prayer for stay of execution of the decree was made and the Learned Appellate Court erred in refusing such prayer. Learned Advocate further submits that it is well settled that an heir having every right to contest the suit the principles of substitution has been given a go-bye by the Court below. It is also submitted that the Decree holder/opposite party has preferred one execution case against the petitioner and the petitioner is recognized as a judgment debtor although she did not get opportunity to contest the case.
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Learned Advocate for the opposite party submits that the original defendant died on 28/11/2002 in Canada and present petitioner was not ordinarily residing with the original tenant tenancy never devolved upon her in view of Section 2(h) of the West Bengal premises Tenancy Act 1956. The opposite party accordingly substituted Official Trustee Government of West Bengal. Learned advocate further submits that the petitioner filed an application for addition of party in the suit which was rejected as she has not inherited the tenancy in view of the West Bengal Premises Tenancy Act. The said order dated 19-06-2003 was set aside with a direction upon Learned Trial Judge to add petitioner as defendant in the suit and thereafter a specific date was to be fixed for hearing on the point of right to contest or right of inheritance of the revisional/petitioner. Learned Advocate also submits that in obedience to the order of this Hon'ble Court in C.O. 54 of 2004, Learned Trial Judge fixed the hearing on the specific point as directed by this Court and by Order dated 08.08.2005 Learned Trial Court held that petitioner has no right to contest the suit as there is no right of inheritance of the tenancy.
It is submitted that the said Order was challenged in Revisional Application being C.O. No. 3403 of 2005 and by Order dated 08.08.2005 the said revisional application was disposed and the order of Learned Trial Judge was affirmed with a direction to struck off the name of Administrator General as party.
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Learned Advocate further submits that the Learned Trial Judge rightly dismissed the application under Order IX Rule 13 CPC and the Learned Appellate Court rightly refused to pass the interim order of injunction.
Learned Advocate relies upon the following Judicial decisions:-
Shalimar Chemical Works Ltd. VS Usha Holding and Enclose (P) Ltd. Reported in 2012(5) CHN (CAL) 429.
Dipak Chakroborty VS Board of Councillors Bhadreswar Municipality Reported in 2012(5) CHN (CAL)-437 Mangalam Educational Society VS Ship Shakti Enterprise. Reported in 2014(1) CHN (CAL) 594.
Brindaban Ghosh VS State of West Bengal Reported in 2014(1) CHN (CAL) 600 Zubaida Begum VS Anwar Ali.
Reported in 2020 (3) ICC-649 (Cal) Marshall Sons and CO(I) Ltd VS Sahi Oretrans (P) Ltd and anr Reported in (1999) 2 SCC-325 9 As the decision of the Learned Trial Court in rejecting application under Order IX Rule 13 CPC is based on the decision of this Court in CO. No- 3403/2005 dated 08.08.2005 it is necessary to consider the said decision.
A learned Judge of this Court while disposing C.O. 3403 of 2005 was pleased to observe as follows:
'I am unable to appreciate the logic of the Learned Judge. Whether the applicant was entitled to represent the Estate in a suit for eviction filed by the landlord was decided by the Learned Judge; According to the Learned Judge the applicant did not have any right to contest the suit on behalf of the deceased - tenant. The Learned Judge decided as against the applicant. As I have observed earlier, I do not find any reason for interference. However the Learned Judge in my view was wrong in retaining the Administrator General as a party defendant. The Administrator General can only be added as a party in a suit where the Estate is unrepresented Admittedly the deceased tenant left her three daughters and one son. Even if the plaintiff gets a decree for eviction, the heirs and legal representatives of the deceased tenant would be entitled to the belongings of the deceased tenant lying in the said flat and for that purpose the defendant would be the appropriate party and Administrator General cannot be of any assistance to court. Even if the plaintiff is successful in getting a decree for the purpose of execution the presence of the applicant is necessary. The applicant was already added as a party defendant.10
Hence the Learned Trial Court should have struck out the name of the Administrator General.
In such view of the matter I grant liberty to the applicant to apply afresh for deletion of the Administrator General and in case such application is made, the Court below would dispose of the same in the light of the observation made above.' Upon plain reading of the observation made by the Learned Judge in CO- 3403/2005 it appears that the Learned Judge observed there is no reason for interference with the order passed by the Learned Trial Judge where the Learned Trial Judge held that the petitioner had no right to contest the suit on behalf of the deceased tenant.
However an observation was made that Administrator General's name ought to have been deleted and liberty given to the petitioner to make necessary application. It was further observed that the deceased tenant left behind 3 daughters and one son. Even if the plaintiff gets decree for eviction the heirs and legal representatives of the deceased tenant would be entitled to the belongings of the deceased tenant lying in the said flat and for that purpose the defendant would be the appropriate party and Administrator General cannot be of any assistance to Court.
Although the petitioner/had no right to be substituted for contesting the suit it is to be considered as to whether the suit could have been proceeded 11 with and decree passed when after the death of original defendant his legal representatives cannot be substituted as defendants for contesting the suit.
Order XXII Rule 1 of the Code of Civil Procedure provides that death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives.
Thus from the said provision it can be inferred when the right to sue does not survive on the death of either the plaintiff or the defendant the suit shall stand abated. A suit can proceed against a defendant when certain reliefs are claimed against him by the plaintiff which according to the plaintiff is his lawful rights being denied by the defendant. Thus when the defendant dies if right to sue survives the suit does not abate and the legal representatives of the deceased defendant can be brought on record. In the event right to sue does not survive the suit stands abated.
In order to ascertain in which cases right to sue survives it is necessary to consider some judicial pronouncements.
In the case of Balwinder Kaur V Gurmukh Singh reported in AIR-2007. Punjab and Haryana the Hon'ble Court observed as follows:
"6. In view of the above legal position, in case the decree of nullity remains intact, the legal right of the applicant to inherit the ancestral property of her parents will be effected. Apart from this legal right of inheritance of ancestral property, her social status will also be at stake. 12
In the society, she will be taken as a child from void marriage. Her matrimonial prospects may also be effected. Therefore, the applicant being the effected party from the impugned decree is entitled to pursue the appeal filed by her mother. Hence, this application is allowed. In the case of Ashok Kumar VS Vid Prakash and Ors reported in AIR- 2010 S.C. P-330 the Hon'ble Supreme Court observed as follows:
"26. It is not in dispute that the original landlord died, as noted herein, during the pendency of the Civil Revision case in the High Court. There is a faint argument of the learned counsel for the appellant that on such date, the requirement of the landlord had perished. In our view, there is no merit in this submission of the learned counsel for the appellant. Looking at the averments made in the eviction petition, where the original landlord has categorically pleaded that the requirement was for his son who presently is the landlord because of the death of the original plaintiff, the question of abatement of the eviction proceeding cannot arise at all. That apart, the submission so made before us by the learned counsel for the appellant was not even raised by the appellant before the High Court where the original landlord died and the present respondents have been substituted in his place.
27. In this view of the matter, we do not find any substance in the submission of the learned counsel for the appellant. No other question was raised by the learned counsel for the appellant in support of this 13 appeal and accordingly, we do not find any merit in this appeal. The appeal is thus dismissed. There will be no order as to costs."
In the case of Saraswathi Ammal VS Lakshmi reported in AIR-1989 Madras P-216 the Hon'ble Court observed as follows:
"4. The main ground upon which deceased Ramanathan instituted proceedings in O.P. 30 of 1983 Sub Court, Kumbakonam, praying for a decree of divorce against his wife, the respondent herein was her desertion of the matrimonial home. Broadly stated, desertion is the breach of an obligation of the married status in that there is an intentional and permanent forsaking and abandonment of one spouse by the other without the consent of the other and without just or reasonable cause. One of the basic marital obligations between spouses is that each spouse should give the other his or her company and should not either forsake or abandon the other without justification therefor. When there is a breach of such an obligation by either of the spouses, it is really in the nature of a personal injury inflicted by the erring spouse on the other in relation to the rights, duties and obligations in the matrimonial home. The rights and obligations in the matrimonial home between the spouses stem out of the union of the husband and the wife for their joint lives. If during the subsistence of the marriage between the husband and the wife, any one of them commits a breach of 14 the obligations arising out of the union, it could best be regarded as an utter disregard of the obligations arising out of the marital status and an injury as well to the party who is affected by the breach of the obligations committed by the other. Viewed thus, O.P. 30 of 1983, filed by deceased Ramanathan has to be considered as a complaint to the Court about the breach of one of the obligations of the marital status by the respondent in that she had intentionally and permanently abandoned him without his consent and without any justification. That complaint was purely a personal complaint of Ramanalhan against the respondent herein with which the petitioner, mother-in-law had nothing whatever to do. From this, it is clear that very basis for the initiation of proceedings in O.P. 30 of 1983 was purely personal to Ramanathan and when he died, there was no question of its survival in the estate of deceased Ramanathan either for his benefit or for the benefit of the respondent herein. It is necessary to remember that deceased Ramanathan was not seeking the enforcement of any right, which on his death, would vest in his heir at law or the representative of his estate. There could, therefore, be no transmission of his interest in favour of the petitioner on his death. It may be that the desertion attributed to the respondent might have continued to remain as a wrong perpetrated by her, but after the death of Ramanathan, who is 15 really the person injured by the conduct of the respondent in relation to the rights and obligations in the matrimonial home none else can complain of it. In other words, the proceedings for divorce in O.P. 30 of 1983, Sub Court, Kumbakonam, initialed by deceased Ramanathan was purely personal to him founded on the subsistence of the marriage between him and the respondent herein and on his death the proceedings at whatever stage they were had abated."
In the case of Mrs Sakinabai and ors VS Salabhai Hasanati Engineer reported in AIR-1967 Bombay-9, the Hon'ble Court observed as follows:
"(6) In connection with thequestionof the right to sue surviving upon death of a person, the relevant statutory provisions are contained in Sections 305 and 306 of the Indian Succession Act. These sections provide as follows:
"305. An executor or administrator has the same power to sue in respect of all causes of action that survive the deceased, and may exercise the same power for the recovery of debts as the deceased had when living.
306. All demands whatsoever and all rights to prosecute or defend any action or special proceeding existing in favour of or against a person at the time of his decease, survive to and against his executors or administrator except causes of action for defamation, assault, as defined 16 in the Indian Penal Code, or other personal injuries not causing the death of the party; and except also cases where, after the death of the party, the relief sought could not be enjoyed or granting it would be nugatory."
The maxim of law in this connection is action personalis moritur cum persona (the right of personal action dies with the person). The converse of this has been accepted as correct by all Courts throughout. The converse is that property rights in favour of and or against any person continue to exist in favour of or against legal representatives of a deceased party-litigant. It is for this reason that one finds the above provisions in the Code of Civil Procedure and the Indian Succession Act. The questioning connection with bringing legal representatives on record (in the language of Section 306 of the Indian Succession Act) would be:-
"Whether the cause and or the suit relates to defamation, assault, as defined in the Indian Penal Code, or it relates to other personal injuries not causing the death of the party and whether it is such as after the death of the party the relief sought could not be enjoyed or granting it would be nugatory." In this connection, reference may be made to the provisions in the Fatal Accidents Act and similar statutes. In our view, it is not possible for us to form the opinion that the ejectment application proceedings against persons mentioned in Section 41 of the Presidency Small Cause Courts Act are proceedings not relating to property rights 17 and/or recovery of properties. These are not proceedings relating to personal causes of action. These proceedings do not die with the death of a party to the proceedings whether he may be applicant and/or opponent. On the contrary these being proceedings for recovery of properties and for enforcing rights to properties, are such as could always be continued against legal representatives of a deceased party to the proceedings."
In the case of Krishna Behari Goel V Raj Mangal Persad and ors reported in AIR-1954 allahabad-182 the Hon'ble Court observed as follows:
"5. The suit was not of a personal nature at all. Sukhhu did not claim any personal right. The injunction sought was that the applicant should not interfere with his possession over the property in dispute. A suit claiming injunction of this nature did not abate on the death of the plaintiff. The cause of action survived to his legal representative who came in possession of the property in dispute. In --'Josiam Thiruvengada v. Sami Iyengar', 5 Ind Cas 937 (Mad) (C), the injunction sought was to restrain the defendant from interfering with the plaintiff's right to stand at a particular place in a certain temple and that was held to be a personal action which died with the plaintiff. The injunction sought in the present case was of a different nature."
In the case of Sharifa VS Munekhan reported in Manu/MH/0012/1901 and also in ILR-1901 25 Bom 574 the Hon'ble Court observed as follows: 18
'The suit was originally brought against the defendant Mukhimbhai for his tortuous conduct in illegally depriving the plaintiff of the custody of his children. It was of the nature of an action, and it is clear law that the cause of action in such a suit does not survive when the defendant dies. As held in Phillips V. Homfray (1883) 24 Ch. D, at P. 456, penal actions arising from wrong are not generally available against the heir. The mere fact that the present appellant is Mukhimbhai's widow and heir cannot therefore make her responsible for his wrong. If she had, after his death, detained the minors in her custody) it is a fresh tort, giving rise to a new cause of action, for which a fresh suit would have to be brought. It is contended before us that in allowing the suit to be continued against the appellant as the widow and heir of the deceased defendant, the lower Court has committed a mere irregularity, and that we should not reverse the decree under Section 578 of the Code of Civil Procedure. But it is not a mere irregularity. The objection which was taken in the Subordinate Judge's Court at the outset goes to the very root of the case, as the cause of action which gave rise to the plaint and on which the merits turned was extinguished, according to law, the moment the defendant died-see per Melvill, J., in Fakira V. Konherrav 1877 P.J P. 77 in special appeal No. 342 of 1873 and in Sakharam V. Dholapa (1876) P.J. p. 243 in special suit brought against A for his tort to be continued on his death against B for the same, merely because B happened to be one of A's heirs. The minor have now arrived at the age of discretion, and there can be no hardship in leaving the plaintiff to such remedy for the recovery of his children as he may have by law. 19
Upon considering the judicial decisions and the facts of the case it is clear that the nature of statutory right of the sole defendant since deceased was such that the right of tenancy did not vest with the legal heirs of the deceased defendant including the petitioner. Thus after the death of the sole defendant the right of tenancy came to an end under Section 2(h) of the West Bengal Premises Tenancy Act 1956. As the tenancy right came to an end the right of possession reverts to the plaintiff by operation of law, thus nothing remained in the suit to be decided and adjudicated, under the West Bengal Premises Tenancy Act 1956. Thus the said suit stood abated on the death of the sole defendant. In the event the plaintiff was aggrieved against the petitioner or any occupier of the suit property for continuing in occupations after death of the defendant the plaintiff ought to have instituted the suit against the occupiers or the petitioner on the ground of being trespasser but nothing remained in the suit which was instituted under the West Bengal Premises Tenancy Act to be decided after death of sole defendant tenant. A suit under the West Bengal Premises Tenancy Act can be instituted against a tenant or his legal heirs if they come under the purview of Section 2(h) of the West Bengal Premises Tenancy Act 1956 and not against any other persons.
Although a Learned Single Judge of this Court by Order dated 13/12/2005 passed in C.O 3403/2005 permitted the trial Court to proceed but it is implied that Learned Trial Court is bound to proceed in accordance with law by considering relevant provisions. Thus the Learned Trial Court before passing the Decree ought to have considered as to whether the suit has abated 20 under Order XXII Rule 1 of the Code of Civil Procedure. Hence the validity of the decree has come into question. In the facts and circumstances when the validity of the decree is under question there is no scope for setting aside ex- parte decree and direct re-hearing of the suit. Thus the order passed by Learned Appellate Court is not taken up and considered on merits. However the petitioner should be granted liberty to raise the issue of validity of judgment and decree by making necessary application before Learned Executing Court.
Hence this Revisional Application is disposed without disturbing the order passed by the Learned Appellate Court. Petitioner is granted liberty to make necessary application challenging the validity of the decree before Learned Executing Court within 3 weeks. In the event such application is made the same shall be decided in accordance with law. However, such application shall be filed within 3 weeks. Till the application is decided by the Learned Executing Court there shall be stay of the Execution proceeding and Misc Appeal being no. 20/2016 pending before the Appellate Court.
Urgent photostat certified copy of this order, if applied for, should be made available to the parties upon compliance with the requisite formalities.
(Biswaroop Chowdhury,J)