Calcutta High Court (Appellete Side)
(Duranta Kumar Middya vs State Of West on 7 November, 2019
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505/CL
07.11.2019
rrc
COLRT 01 of 2015
with
COLRT 02 of 2015
(Duranta Kumar Middya Vs. State of West
Bengal & Ors.)
Mr. Kamal Mishra
Mr. Tamal Taru Panda
......For the petitioner
Mr. Soumitra Bandyopadhyay
Mr. Aniruddha Sen
......For the State
(COLRT 01/2015)
Mr. Chandi Charan De, Ld. Addl. Government Pleader
Mr. Anirban Sarkar
......For the State
(COLRT 02/2015)
Re : COLRT 01 of 2015
In this civil revisional application under Article 227 of
the Constitution of India, an order dated 29th September,
2014 has been challenged by the original applicant in O.A.
3008 of 2003 (LRTT). The said order was passed in
Miscellaneous Application No. 525 of 2010. This was an
application for addition of party taken out by the opposite
party nos. 12 and 13.
The opposite party nos. 12 and 13 claimed to be the
heirs of one Pramila Middya. The said Pramila Middya had
laid claim to possession of the selfsame land to which the
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petitioner has laid a claim including one for issuance of an
indenture after settlement on payment of the full selami.
The application for addition of party was contested by
the original applicant/petitioner on the ground that Pramila
Middya had died long time back allowing an abatement to
happen and without setting aside the abatement, no addition
of party could be made. The petitioner had also referred to a
statutory appeal where no substitution was made by Pramila
Middya's heirs though the appeal had been filed by her.
Mr. Mishra, learned advocate appearing on behalf of the
petitioner has submitted that this itself is sufficient ground
to hold that any right of the heirs of Pramila Middya in a
separate proceeding being O.A. No. 3008 of 2003 also
abates.
This argument did not find favour with the learned
tribunal. In our opinion, the learned tribunal when it allowed
the addition of party after considering all the submissions of
the original petitioner did no wrong for the following
reasons:-
1) Pramila Middya was not a party to O.A. No.
3008 of 2003. Her death could not cause an
abatement to happen if no substitution was
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made within the period of limitation because
she was a non- party;
2) If there was no abatement in the proceeding
where the application was made but in a
separate proceeding the heirs of Pramila
Middya did not take steps, that would not
mean that the right of the heirs to continue
any litigation or to contest any litigation
which Pramila Middya may have done, was
taken away;
3) Section 146 of the Code of Civil Procedure or
principles analogous thereto is sufficient
authority for the proposition that what the
party to a proceeding who has died would
have done in his life time could be done by
his heirs.
4) In that view of the matter, since the legal
heirs of Pramila Middya are also laying claim
on the selfsame land to which the petitioner
is claiming the right to get an indenture after
paying the full selami amount must be held
to be a proper party at least, if not a
necessary party.
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The learned tribunal has, therefore, done the only
possible thing for another original application of the
petitioner asking for a relief relating to issuance of an
indenture in respect of the said land, to which the heirs of
Pramila Middya are also interested, is pending and,
therefore, we find no infirmity in the order of the learned
tribunal requiring us to intervene in the matter.
Therefore, COLRT 01 of 2003 is dismissed. Interim
order, if any, stands vacated.
This order shall not preclude the petitioner from raising
the question of abatement before the statutory authority
before whom the statutory appeal was filed by Pramila
Middya, if at all such point arises for consideration.
There shall, however, be no order as to costs.
Re : COLRT 02 of 2015
COLRT 02 of 2015 is also directed against an order
dated 29th September, 2014 passed by the West Bengal Land
Reforms and Tenancy Tribunal whereby it allowed an
application for substitution as well as an application for
condonation of delay filed in O.A. 1266 of 2003 (LRTT).
We have, minutes before, decided COLRT 01 of 2015
involving the same parties who have been claiming rights in
respect of a piece of land. The facts have been noted in detail
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in the order passed while disposing of COLRT 01 of 2015
and hence, are not repeated here.
Since it is clear that there are rival claims in respect of a
single immovable property and the petitioner is the original
applicant in O.A. 3008 of 2003 and the respondent in O.A.
1266 of 2003 which was initially instituted by Pramila Middya (since deceased) and her heirs had applied for being substituted in her place on her death, we are of the considered opinion that the discretion exercised by the tribunal in allowing the relevant applications does not call for any interference. The order impugned is upheld. C.O.L.R.T. 02 of 2015 stands dismissed. Interim order stands vacated.
O.A. 1266 of 2003 (LRTT) as well as O.A. 3008 of 2003 (LRTT) filed by the petitioner herein should be heard together by the tribunal and disposed of as early as possible having regard to the lapse of time since such institution. In view of the fact that the original applications have been pending for more than 15 years, we hope and trust that the tribunal shall proceed to fix the applications for hearing giving some precedence.
Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible. 6 A.C.O. Photocopy of this order, duly countersigned by the Assistant Court Officer, shall be retained with the records of C.O.L.R.T. 02 of 2015.
(Protik Prakash Banerjee, J.) (Dipankar Datta, J.)