Calcutta High Court (Appellete Side)
Swapan Kumar Gupta & Anr vs Ms. Snigdha Majumdar @ Snigdhga ... on 19 July, 2016
Author: Indrajit Chatterjee
Bench: Indrajit Chatterjee
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19.07.2016
s.d
S.A. 96 of 2004
With
CAN 9392 of 2014
With
CAN 1543 of 2016
With
CAN 2316 of 2016
Swapan Kumar Gupta & anr.
-vs-
Ms. Snigdha Majumdar @ Snigdhga Sengupta & Ors.
Mr. Hiranmoy Bhattacharya
Mr. Mrinal Kanti Ghosh
............ for the Appellants.
Mr. Parth Pratim Roy
Mr. Sarbananda Sanyal,
............ for the applicant in
CAN 2316 of 2016.
Mr. Sabyasachi Bhattacharyya
Mr. Partha Pratim Dey
Ms. Saswati Chatterjee
..for the O. P/Landlord.
CAN 2316 of 2016
In all three Can applications are pending.
CAN no.9392 of 2014 has been filed by the
present respondents landlords for expeditious
hearing of this appeal. CAN no.1543 of 2016 has been filed by the said respondents for recording abetment of the appeal. CAN no.2316 of 2016 has been filed by the legal heirs of Anita Chatterjee. 2 With the consent of the parties I prefer to take up this can application no.2316 of 2016 at first.
In this CAN application the heirs of Smt. Anita Chatterjee, who was the daughter of the original tenant, Anil Kumar Gupta, have prayed for their addition under Order 1 Rule 10(2) of the Civil Procedure Code (hereinafter called as the said 'Code'). This Anita died on 08.09.2006 after she preferred this appeal being appellant no.1 (b). Her legal heirs were not substituted as per the provisions of Order 22 of the Code in this appeal.
It may be mentioned that her full brother Swapan Kumar Gupta is the appellant no. 1(a). After the death of their father that is the original tenant both Anita and Swapan were substituted before the learned trial court. They appeared jointly by filling one vokalatnama together to establish that they inherited the tenancy estate of Anil Gupta in equal share. The matter was not challenged before any forum that the inclusion of Anita Chatterjee in that suit was not necessary as she was not a necessary party in view of definition of Section 2 (h) of the West Bengal Premises 3 Tenancy Act, 1956. Thus, the matter remained admitted at least till the matter is being heard that Anita and Swapan were the joint tenants under the present respondents.
It is contended by Mr. Partha Pratim Roy, appearing on behalf of the petitioners that this application under Order 1 Rule 10(2) is very much maintainable in view of the fact that the estate of tenancy was duly represented by Swapan Gupta that is the full brother of Anita and it was in all terms a joint tenancy.
The question now is whether the legal heirs of Anita can be added as a party by bypassing Order 22 Rule 9 of the Code taking advantage of Order 1 Rule 10(2) of the Code.
Mr. Roy took me to paragraph 6 and 7 of the application to say that the present petitioners were not at all aware of the pending proceedings of this court and came to learn this very recently on 27.02.2016, when their maternal uncle, being the appellant no. 1(a), approached these petitioners to sign certain papers. Thus, it is the claim of the present petitioners that they were not 4 at all aware of the pending proceedings before this Hon'ble Court and as such their petition is maintainable under Order 1 Rule 10(2) of the C.P.C because of the fact that the estate of tenancy was represented during their absence by their maternal uncle.
In counter to all these, it was submitted by Mr. Sabyasachi Bhttacharyya, learned advocate appearing on behalf of the opposite party/landlord submitted that these petitioners cannot take recourse to Order 1 Rule 10(2) of the Code bypassing the Order 22 of the said Code. Thus, it was submitted that the appeal had abated after 150 days of the death of Anita and as such the matter cannot be reopened by taking recourse to Order 1 Rule 10(2) of the Code.
He further submitted that the estate left by Anil Gupta cannot be said to have been represented by the maternal uncle of the present petitioners in their favour as one maternal uncle is not one legal representative of the petitioners as their mother Anita died leaving behind her legal heirs.
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As regards Can no.1543 of 2016 Mr. Bhattacharya further submitted that the entire appeal has abated. On this, he cited a decision as reported in AIR 1963 SC 1901 (Rameshwar Prasad and others v. Shambehari Lal Jagnnath and anr.) wherein the Apex Court in clear terms held in paragraph 14 of the judgment that to get advantage of Rule 4 of Order 41 of the Code the deceased plaintiff or the defendant must not be the appellant. It is further held in paragraph no.15 that it will be against the scheme of Code 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 the decree against him has become final.
In paragraph 16 of the judgment the Apex Court further illustrated that "An appellate Court has no power to proceed with the appeal and to reverse and vary the decree in favour of all the plaintiffs or defendants under Order 41 Rule 4 when the decree proceeds on a ground common to 6 all the plaintiffs or defendants, if all the plaintiffs or the defendants appeal from the decree and any of them dies and the appeal abates so far as he is concerned under Order 22 Rule 3".
Mr. Bhattacharyya also submitted by taking me to that decision that Order XLI Rule 4 of the Code cannot have any overriding effect over the provisions of Order XXI Rule 9 of the Code. He also referred to paragraph 18 of the said decision, wherein the Apex Court observed that where in a case the legal representatives of the deceased appellant and the surviving appellants are negligent in not takings steps for substitution the court is not to exercise its discretion in favour of such a party.
The court further observed that discretionary power cannot be exercised to nullify the effect of the abatement of the appeal so far the deceased appellant is concerned. The Apex Court also contemplated as regards contradictory decrees when it observed "in fact such an exercise of power will lead to existence of two contradictory decrees between the heirs of the deceased 7 appellant and the respondents, one passed by the appellant Court and another to the contrary effect by the court below which has attend finality consequent on the abetment of the appeal in so far as they are concerned. This is always avoided".
Thus, he submitted that the entire appeal has abated.
Mr. Hiranmoy Bhattacharyya, learned advocate appearing On behalf of the appellant no. 1(a), submitted that the entire appeal cannot be abated as because the son of the original tenant was the present appellant no. 1(a) and the entire tenancy estate was represented through him.
He took me to Order 22 Rule 2 of the CPC to convince this Court that when there are more plaintiffs or defendants than one and if anyone of them dies and where the right to sue the surviving plaintiff or plaintiffs or plaintiffs' applications or against the surviving tenants or the defendants' applications, the Court shall cause an entry to that effect to be made on the record and the suit was proceeded at the instance of the surviving 8 plaintiff or plaintiffs or against surviving defendants or defendants.
He also referred to Order 22 Rule 11 and Order 41 Rule 33. Mr. Bhattacharya further claimed that the entire suit cannot abate as Anita was not a necessary party and as such for non- substitution of legal heirs of Anita the appeal as a whole cannot abate and the estate left by Anil Gupta was inherited and is being represented by his son the appellant no.1 (a) Swapan Gupta.
In reply, it was submitted by Mr. Hiranmoy Bhattacharyya, learned advocate appearing for the appellant no. 1(a) that this appeal is not regarding any immovable property but as regards the tenancy estate and the tenancy estate was rightly represented.
He further submitted by taking me to Section 2 (h) of the West Bengal Premises Tenancy Act, 1956 that this Swapan is the statutory tenant as her sister was not residing in premises in question as will be evident from the decree of the trial court or the court of appeal. He further submitted that 9 Anita and her brother were substituted as the instance of the plaintiffs and the address was provided by them. He cited a decision of the Apex Court as reported in (1955) 1 SCC 164 to substantiate his view that actually Swapan is the statutory tenant after the demise of his father. He further extended his argument that Anita was not a necessary party as she was not residing in the suit premises and as such the appeal cannot abate in the event of the death of one unnecessary party.
He also cited a decision of the Apex Court as reported in (2001) 8 SCC Page 758 relying on paragraphs-2, 5 & 7 and also one unreported decision of this Court as passed in CAN no.5606 of 2016 to establish his contention that actually the appeal will not abate.
For me for further use:
Here the maternal uncle cannot be said to be the legal representatives of the petitioners. The term legal representative in broadcast sense means one who stands in place of, and interests of another. It 10 may include executor or administrator of an estate. The term ordinarily means a person who in law represents the estate of the deceased or person on whom the estate devolves on the death of an individual. As per 2(11) of the Code the term means who in law represents the estate of the deceased person.
Thus the appellant No.1(a) cannot be said to be legal representative of these petitioners. In view of this it cannot be said that estate of tenancy was being represented by this maternal uncle, the appellant No.1(a). The argument in this regard made by Mr. Roy is answered in the negative. Anita died 08.09.2006 and her legal heirs were no substituted under Order 22 of the Code with 150 days (90days + 60days). This application under Order 1 Rule 10 of the Code was filed on
03.03.2016, after a gap if roughly ten years. Thus, according to me this petition has been filed just to defeat the provisions of Order 22 of the Code. The present petitioners being guilty of negligence cannot take advantage of Order 1 Rule 10(2) of the Code. The petitioners who are the legal heirs of the 11 original appellant No1(b) cannot even take the advantage of Order 41 Rule 4 in view of the decision of the Apex Court as passed in Rama Shwar Prasad (supra). The petition being misconceived is rejected. The CAN No.2316 of 2016 is this answered in the negative.
Now the question is whether the entire suit will abate or there will be partial abetment in respect of the legal heirs of Anita. Admittedly the tenancy became joint tenancy after the death of the original tenant. Thus, the decree passed by the two lower courts are indivisible. Here the interest of the defendants tenants are not severable. Thus, the court has to see whether the decree is joint and in severable for the purpose of abatement. I can rely upon the decision of the Apex Court as reported Shahazade Bi Vs. Halima Bai (2004) 7SCC 354:
AIR 2004 SC 3942.
As the prayer for addition of party vide Can No.2316 of 2016 has been rejected and no prayer for substitution was made in due time by the legal heirs of Anita the suit has abated in respect of those legal heirs. The decree being in severable the 12 entire appeal must abate. It would be against the spirit of the Code that the decree of the lower court will become final/absolute after abatement of this appeal in respect of the legal heirs of Anita and the same judgment decree will scrutinized in the second Appeal which may change the findings of the courts below. It will take us to nowhere. The decision of the Apex Court in Rameshwas Prasad (supra) has decided in clear tone that facts and circumstances of this case the appeal must abated as a whole.
This court is not unmindful of the decision of the Apex Court as reported in (1995) 1 SCC Page- 164 and this Court is satisfied that Swapan Gupta became statutory tenant after the death of his father in view of Section 2 (h) of the Act of 1956. But this court should not forget that the brother Swapan and sister Anita remained in the same boat till this appeal was filed and as such now Swapan is estopped from saying that he became the sole statutory tenant. Thus, now he cannot disown his sister or her legal heirs to be in a safe position in this appeal.
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This Court is also not unmindful of the decision of the Apex Court as passed in Chittaranjan Burman (supra) but this decision cannot apply in this case as in that case before the floor of the Apex Court the legal heirs of Kishori Lal and Shankar Lal were duly substituted which is just contrary to the present case before this Court.
The Single Bench decision of this Court as passed in CAN No.5606 of 2016 cannot apply on factual aspect of this case.
Thus, CAN No.1543 of 2016 is answered in the affirmative. I reiterate that the entire appeal has abated. The CAN is thus disposed of on contest. There will be no order as to costs. Regarding CAN No.9392 of 2014 In view of the decision of this Court passed in connection with CAN No.1543 of 2016 and CAN NO.2316 of 2016 this application for expeditious hearing of this appeal has become infructuous, the entire appeal is abated.
(Indrajit Chatterjee, J.)