Calcutta High Court (Appellete Side)
Sri Sushil Kumar Banerjee vs Smt. Bhabani Dassi & Ors on 17 December, 2018
Author: Bibek Chaudhuri
Bench: Bibek Chaudhuri
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
The Hon'ble JUSTICE BIBEK CHAUDHURI
CO No. 1383 of 2017
SRI SUSHIL KUMAR BANERJEE
-Versus-
SMT. BHABANI DASSI & ORS.
For the Petitioner: Mr. Susenjit Banik,
Mr. Loknath Ghosh,
Heard on: December 07, 2018.
Judgment on: December 17, 2018.
BIBEK CHAUDHURI, J. : -
1.Order No.181 dated 1st March, 2017 passed by the learned Civil Judge (Junior Division), 1st Court at Chinsurah, Hooghly in Title Suit No.127 of 2017 (Title Suit No.5967 of 2014) is the subject matter of the challenge in the instant revision.
2. The petitioner as plaintiff filed the above numbered suit in the 1st Court of the learned Civil Judge (Junior Division), Chinsurah, Hooghly for a declaration that the defendants have no right, title and interest over the suit property, permanent injunction and other consequential reliefs. It was pleaded by the plaintiff/petitioner that one Monorama Dassi took loan of Rs.2000/- from the plaintiff and in return of the said loan she promised to transfer .26 decimal of land, morefully described in the plaint by executing a deed of sale. Simultaneously, with acceptance of a sum of Rs.2000/- from the plaintiff, the said Monorama put her in possession. Unfortunately, during her lifetime, Monorama could not execute formal sale deed in favour of the plaintiff. After her death, the suit property was inherited by her children, defendants/opposite parties No.1 and 3. The said legal heris of Monorama subsequently got their joint properties amicably partitioned and B schedule property was exclusively owned and possessed by the defendant/opposite party No.1. The defendant No.1 subsequently executed a deed of sale in respect of B schedule property at a consideration price of Rs.4500/- in favour of the plaintiff/petitioner. Subsequently, it was revealed that in the said deed of sale, the vendor described schedule B property situated in plot No.608 in place of plot nos. 584, 587 and 589, within mouza - Gopalpur, P.S -Dhaniakhali, Hooghly. In fact, the defendant No.1 sold out plot Nos. 584, 587 and 589 measuring 26 decimals of land. Plaintiff further came to know that plot No.608 was already sold to one Badal Chandra Jana, Niranjan Jana and Basudeb Jana (defendant/opposite party No.9) by executing a deed of sale dated 23rd April, 1973 by the defendant/opposite party No.1. Due to wrong description of the schedule of the property, purchased by the plaintiff from defendant/opposite party No.1, a confusion arose over the ownership of B schedule property. Furthermore, the said Badal Chandra Jana, Niranjan Jana and Basudeb Jana mutated their names in the record of rights. It was further pleaded by the plaintiff that the defendant No.2 sold out the plot no.589 in favour of the defendants/opposite parties No.4, 5 and 6 by executing another deed of sale dated 3rd October, 2007. As a result of such wrong description of the suit property which the plaintiff purchased from defendant/opposite party No.1 and subsequent sale of land of plot No.589, a confusion arose with regard to right, title and interest of the plaintiff over the suit property. Hence the suit.
3. It is pertinent to mention here that defendant/opposite party No.7(a-b) and 8(a-c) are the legal representatives of the said Badal Chandra Jana and Niranjan Jana who had expired during the pendency of the suit.
4. The plaintiff/petitioner alleged that the defendant/opposite party Nos.6-12 being the legal heirs and representatives of the original defendants Badal Chandra Jana and Niranjan Jana and Niranjan Jana respectively and defendant No.9 Basudeb Jana, since deceased entered appearance in the said suit and filed their joint written statement on 2nd January, 2009. However, they failed to take further step in the trial court which prompted the learned trial judge to pass order No.68 dated 9th April 2010 directing ex parte hearing against the above named defendants/opposite parties.
5. The above mentioned suit was fixed for recording evidence on 22nd September, 2016, when the learned advocate for the defendant informed the learned trial court that defendant No.9 Basudeb Jana died on 23rd July, 2016. On 27th September, 2016, the plaintiff/petitioner filed an application under Order 22 Rule 4(4) of the Code of Civil Procedure praying for a order of exemption from substituting the legal heirs and successor of the said defendant No.9 against whom an order had already been passed for ex parte hearing of the suit.
6. The learned trial judge by passing the order impugned rejected the said application on 10th March, 2017.
7. The aforesaid order is assailed by the plaintiffs/petitioner in the instant revision.
8. It reveals from the record that copies of the revisional application was sent and served to the opposite parties and also duly served upon them in accordance with law. The opposite parties, however failed to appear before this court to contest. Therefore, learned advocate for the petitioner was heard.
9. I have heard Mr. Bonik, learned advocate for the petitioner, perused the materials on record.
10. Mr. Bonik submits before me that the above mentioned title suit was fixed for cross examination of PW1 on 22nd September, 2016 before the learned trial judge. On that date the learned advocate for contesting defendants informed the court that defendant No.9 against whom the suit was fixed for ex parte hearing by an order date 9th April, 2010, expired on 23rd July, 2016. On 27th September, 2016, the plaintiff/petitioner filed an application under Order 22 Rule 4(4) of the Code of Civil Procedure with a prayer to exempt the plaintiff/petitioner from substituting the legal representatives of defendant No.9, against whom the said suit had been proceeding ex parte. It is further submitted by the learned advocate for the plaintiff/petitioner that the learned trial judge rejected the petition under Order 22 Rule 4(4) of the Code of Civil Procedure on the ground that no special reason could be cited by the plaintiff/petitioner in his petition for which the said petition deserved favourable consideration.
11. For proper appreciation of the matter, the provision of Order 22 Rule 4(4) of the Code of Civil Procedure is quoted 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."
12. Plain reading of the aforesaid provision suggests that though the defendant No.9, since deceased entered appearance in the suit and filed Written Statement, failed to contest the suit and the learned court below passed an order dated 9th April, 2010 that the suit would proceed ex parte against the said defendant No.9, since deceased. It needless to say that the suit is still pending and no decree has yet been passed in the said suit. It other words the plaintiff/petitioner filed the petition for exempting him from substituting the legal representatives deceased defendant No.9 during the pendency of the suit. In such a situation, according to the decision of T Gnanavel vs. T.S Kanagaraj & Another reported in (2009) 14 SCC 294 and Giridharilal vs. Laxminarain reported in AIR 1990 Raj 15 exemption from taking step from substitution before pronouncement of judgment could well be prayed for under Order 22 Rule 4(4) of the Code of Civil Procedure.
13. For better appreciation of the legal proposition involved in the matter and proper adjudication of the instant revision, paragraph 23 and 25 of the decision in T. Gnanavel (supra) are quoted below:-
"23. As noted hereinearlier, a plain reading of Order 22 Rule 4(4) CPC would clearly show that the court is empowered to exempt a plaintiff from the necessity of substituting the heirs and legal representatives of any such defendant who has failed to file a written statement or who, having filed it, had failed to appear and contest the suit at the time of hearing of the same, but such an exemption can only be granted before the judgment is pronounced and in that case only, it can be taken against the said defendant notwithstanding the death of such defendant and such a decree shall have the same force and effect as if it was pronounced before the death had taken place.
25. We are unable to accede to this submission of Mr Ranjit Kumar, the learned Senior Counsel appearing on behalf of the appellant for the simple reasons viz. (1) on the abatement caused on the death of the defendant, the suit automatically abated in view of the provisions under Order 22 Rule 4(3) CPC, and (2) from the decision in Zahirul Islam v. Mohd. Usman, it would be evident that no exemption was sought or granted under Order 22 Rule 4(4) CPC in the aforesaid decision. In any view of the matter, Order 22 Rule 4(4) CPC clearly says that such exemption to bring on record the heirs and legal representatives of the deceased could be taken or granted by the court only before the judgment is pronounced and not after it."
14. On perusal of the impugned order, I am of the view that the learned trial judge misrepresented the ratio of the decision in the case of Zairul Islam vs. Md. Usman reported in (2003) 1 SCC 476. Paragraph 7 of the Zairul Islam (supra) is relevant for the purpose of disposal of the instant revisional application.
"7. In the instant case, it is stated by the learned counsel appearing for the appellant that no question contemplated under sub-rule (4) was obtained from the court exempting the plaintiff from bringing on record the legal representative of the deceased Defendant 2. From the order under challenge also, it does not appear that any such permission was sought or granted by the court. In this view of the matter, the order under challenge cannot be sustained. It is, accordingly, set aside. The appellant was, therefore, entitled to be brought on record in the suit."
15. It will not be out of place to mention that the legislature incorporate the provision of Order 22 Rule 4(4) of the Code of Civil Procedure with a specific view to expedite the process of substitution of the legal representatives of non contesting defendant(s). In the absence of uncomparing reason to the contrary, the court below could and indeed and to have exercised the power vested in other to avoid abatement of the suit of exempting the plaintiff from the necessity of substituting the legal representative of deceased defendant No.9, namely Basudeb Jana.
16. In the instant case, the plaintiff/petitioner specifically pleaded that suit property, being plot No.584, 587 and 589 of mouza- Gopalpur was actually sold by the defendant/opposite party No.1 to the plaintiff. On the other hand deceased defendant No.9 and his two brothers became owners of plot No.608 in the same mouza by virtue of a deed of purchase dated 23rd April, 1973. Plot No.608 is not the subject matter of the suit. The suit will not abate even if the legal representatives of deceased defendant No.9 are not substituted.
17. In view of the reasons aforesaid, I have no other alternative to hold that the learned trial judge failed to exercise the jurisdiction vested in him.
18. In the result, the instant revision is allowed. The plaintiff/petitioner is exempted from substituting the legal representatives of defendant No.9, since deceased. However, there shall be, no order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.
(Bibek Chaudhuri, J.)