Calcutta High Court (Appellete Side)
Krishna Nath Ghosh & Ors vs Monoj Bhakat Alias Monoj Kumar Bhakat & ... on 20 June, 2017
1
IN THE HIGH COURT AT CALCUTTA
20-06-2017Civil Revisional Jurisdiction Subrata . CAN No.5280 of 2017 in C.O.No.4098 of 2016 Krishna Nath Ghosh & Ors.
-vs-
Monoj Bhakat alias Monoj Kumar Bhakat & Ors.
Mr. Indranath Mukherjee ...for the applicants Mr. Anit Rakshit ...for the opposite party no.1 In compliance with an order dated May 3, 2017 passed by this court in CO No.4098 of 2016, CAN No.5280 of 2017 has been filed for expunging name and/or substitution of heirs of the proforma opposite party no.5, who was proforma defendant no.10 in the suit.
Heard Mr Mukherjee representing the applicants and Mr Rakshit appearing for the opposite party no.1, who was the plaintiff in Title Suit No.155 of 2010. The CO has been filed assailing Order No.69 dated August 20, 2016 passed by learned Civil Judge (Sr. Division), Searampore rejecting the application under section 151 of the Code of Civil Procedure and allowing the application under Order 26 Rule 9 CPC.
Mr Mukherjee relying upon an information received by exercising searching slip under serial no.769 dated May 18, 2017 submits that since said proforma defendant no.10 did neither appear till the stage, nor did he file written statement, and since the instant revisional application has 2 been filed assailing an interlocutory order in the suit, whatever best efforts could have been possible the petitioners have done it by sending notice under speed post once more, pursuant to the direction of this court. Further submits, as it appears from the information supplied by Mr Rakshit, learned counsel for the opposite party no.1, that said proforma defendant no.10 died on October 7, 2016; and since the duty is vested upon the plaintiff for taking necessary steps for substitution or otherwise in the suit; and since it has not yet been done, his clients have no alternative but to seek an order of the court by preferring the CAN. Submits that whatever direction will be given by this court his clients would comply.
Mr Rakshit, learned advocate for the opposite party no.1, on the other hand, invited attention of this court to sub-rule (4) of Rule 4 of Order 22 CPC and submitted that since in this CO the petitioners did not take appropriate steps within the stipulated period in terms of the rule laid down in the Code, the order of abatement of this CO should be recorded, and that the petitioners are supposed to take further necessary steps for setting aside the abatement and then only the CO can be taken up for hearing on merit.
Mr Rakshit also pointed out the text of the searching slip and submitted that according to the information supplied by the department of the concerned court that there was no order as regards service return as against the said proforma defendant no.10 and since no service report also was found present on record and no order was passed for proceeding with the suit ex parte as 3 against the proforma defendant no.10, it could never be said that the proforma defendant no.10 or his successors would not appear in the suit and would not contest thereby.
It is redundant to mention that a revisional application within the ambit of Article 227 of the Constitution is dealt with the grievance, if it is raised as against an interlocutory order in the suit or the civil proceeding. In the instant case it was the contesting defendants no.1-5 who have come up with the revisional application raising grievance against one of such interlocutory orders passed by learned trial court. Therefore, the revisionists are captioned as the petitioners in such a proceeding, and they cannot be equated with the term "plaintiff" in terms of Order 22 Rule 4(4) CPC and thereby the bounden duty is vested upon the plaintiff(s) alone for making substitution in the suit within the stipulated period. Has it not been done, then the petitioners of the revisional application can have no alternative but to place the persons as per the cause title of the plaint as parties in the revisional application and thereby said proforma defendant no.10 of the suit has been made party in the revisional application as the proforma opposite party no.5. Even if in such exercise the revisional application is filed as against a dead man for not amending the cause title before learned trial court at the instance of the plaintiff, the petitioners of the CO cannot be put at fault for not undoing what was supposed to have been done primarily by the plaintiff in the suit.
4However, in the instant proceeding Mr Rakshit, in his usual fairness, had intimated the fact of death of said proforma defendant Paresh Nath Bhakat by supplying the information through letter. That information is the turning point for taking steps as against the said dead man by the revisionists in the CO.
Initially, while the revision was admitted on November 7, 2016 on prayer of the petitioners, service upon proforma opposite parties were dispensed with at the risk of the petitioners. On March 28, 2017 pursuant to submission of Mr Mukherjee direction was given to cause service of notice upon the proforma opposite parties no.2-6 of which said Paresh Nath Bhakat (since deceased) was proforma opposite party no.5.
From the order dated May 3, 2017 it appears that though notice was served upon the other opposite parties, either of them did not appear in this proceeding. However, the report as against the proforma opposite party no.5 as was sent under speed post returned with the endorsement of the postal department "insufficient address," Such remarks of the postal department, of course, is not accepted by this court as a fair and sacrosanct report, since notice against him was sent at the same address where his close relatives received their respective notice and have chosen not to appear.
Be that as it may, pursuant to the liberty as given again to learned counsel for the petitioners to take steps, the instant CAN has been filed praying for condonation of 5 delay and for passing necessary order either to allow the petitioners for expunging said proforma opposite party no.5, since deceased, and/or also for exempting from substituting the heirs of said proforma opposite party no.5, or in the alternative as sought for necessary order for substitution by condoning the delay.
For convenience of all purposes and to be reminded once again about the provisions of law, sub-rule (4) of Rule 4 of Order 22 of the Code of Civil Procedure is set out below:-
"(4) The Court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place."
Therefore, the aforesaid provision has made clear indication that upon approach of the plaintiff in the suit, the court, if thinks fit, exempts the plaintiff from substituting the legal heirs of a defendant who failed to file written statement or failed to appear or contest so on and so forth.
Though the suit is of the year 2010 and the text of the information slip supplied on May 18, 2017 as regards the fate of the proceedings so far as Paresh Nath Bhakat is concerned, the act and action on the part of the plaintiff is not happy. The plaintiff is seen to be not vigilant to take also appropriate step in the suit for substituting or otherwise as a consequence of death of said Paresh Nath 6 Bhakat. Equally learned trial court cannot evade its responsibility to record appropriate order either directing the plaintiff to take fresh steps as against the defendant upon whom the service of notice was not effected; or if it was effected, then learned trial court ought to have recorded also for proceeding with the suit ex parte as against that absentee defendant, provided notice was served upon him satisfactorily.
Therefore, while the scope of revisional application has been provided in the Code assailing any interlocutory order, that too at the instance of the contesting defendants of the suit, the duty as vested under Order 22 itself through different rules the said duty since has not yet been complied with by the plaintiff in the suit (the opposite party no.1 in this proceeding) consequence for which may be followed in the suit itself, especially when the prayer of declaration in the suit has been sought for covering the alleged right of the plaintiff and the proforma defendants no.7-10, including said Paresh Nath Bhakat (since deceased). However, the same is altogether a different context to be decided by learned trial court.
Mr Rakshit could not satisfy this court as to whether necessary steps have been taken by his clients in the suit or not uptil now. But by no stretch of imagination the term "plaintiff" as set out in sub-rule (4) of Rule 4 of Order 22 CPC cannot be equated with the term "petitioners" of this revisional application and if it claimed this would be a wrong perception of law, especially because the revisionists are the defendants in the suit and they 7 have maintained the cause title of the application as per the existing cause title of the plaint. While the plaintiff, the opposite party no.1 in the CO, has not shouldered and discharged his own mandatory obligation in terms of Order 22 CPC, burden and liability of said undoing cannot be shifted to the shoulder of these petitioners whose status in the suit as the principal defendants. However, fact remains that the said proforma opposite party no.5, Paresh Nath Bhakat, as proforma defendant no.10 did not file any written statement as yet in the suit, though his other close relatives got notice of the suit. He died by this time and so far as there is no scope which might have been shouldered by his heirs upon substitution, if they are allowed to be added in the suit after overcoming the hurdles of the legal provision, especially when in the prayer of the suit the relief was sought for jointly in favour of the plaintiff and the respective proforma defendants including said Paresh Nath Bhakat (since deceased).
In view of the above observations and since the CO is to be disposed of by examining the propriety of the impugned interlocutory order at the instance of the petitioners and the sole contesting opposite party no.1, (plaintiff in the suit), since other opposite parties did not appear, this court holds that order of simply expunging the name of Paresh Nath Bhakat as the opposite party no.5 in the CO would be the only way to proceed with the revisional proceeding for its disposal in accordance with merit, and therefore no bounden duty is cast upon the revisionists to make any further effort to bring the heirs of deceased proforma opposite party no.5 on record of this 8 revisional proceeding, since it has been forgone in the suit by the plaintiff, as it stands till today.
Thus, CAN No.5280 of 2017 is allowed giving liberty to learned advocate-on-record of the petitioners to expunge the name of proforma opposite party no.5 Paresh Nath Bhakat in court in course of this day.
Let the CO appear in the list of June 30, 2017 as the first hearing matter.
Certified photostat copy of this order, if applied for, shall be given to the parties.
[Mir Dara Sheko, J]