Calcutta High Court (Appellete Side)
Phani Bhusan De & Ors vs Manoranjan De & Ors on 9 November, 2017
1 09.11.2017
C.O. 2628 of 2017 ss Phani Bhusan De & ors.
Vs. Manoranjan De & ors.
Mr. Apurba Krishna Das Mr. Kallol Kumar Maity ... For the petitioners Mr. Prabir Kr. Mishra Mr. Shibendra Nath Chattopadhyay ... For the opposite party nos.2 & 3 An affidavit of service is filed today showing service of notice on the principal defendants/opposite parties nos.2 and 3 and plaintiffs/opposite parties nos.15 and 16. It appears that there was a previous direction on August 17, 2017 to serve notice upon all the opposite parties. However, in view of the nature of relief sought, service is hereby dispensed with on opposite parties nos.4 to 14 on the prayer of the petitioners and at their own risk.
The plaintiffs in a suit for declaration and consequential relief in respect of an immovable property, are the present petitioners. Opposite parties nos.2 and 3, being the principal defendants in the said suit, have also filed their own partition suit, which is pending before the Civil Judge, (Senior Division), 2nd Court at Contai.
It is submitted that the opposite parties nos.2 and 3 had taken out an application under Section 24 of the Code of Civil Procedure for transfer of the present petitioners' suit to the Court where the partition suit of the opposite parties nos.2 and 3 is pending. The said transfer application having been dismissed, the said opposite parties took out a revisional application before this Court, which was also dismissed.
2The present petitioners say that only after the said order of this Court was communicated to the Civil Judge (Junior Division), did they come to know that the defendant no.1, Manoranjan De, had died and his heirs have been substituted in the partition suit.
In the said background, the present petitioners took out an application under Section 151 of the Code of Civil Procedure in the Court below for substitution of the legal heirs of the principal defendant no.1 on a later date.
The petitioners had also filed an application for expunging the names of defendant nos.7 and 8 in their suit on the ground that the said defendants had not contested the said suit.
A third application was taken out for transposition of two of the plaintiffs to the category of defendants. However, such application was not preferred by the plaintiffs who were sought to be transposed.
All the aforesaid three applications were rejected by the impugned order. Learned Counsel for the petitioners fairly submits that he will not urge anything against the dismissal of the transposition application as the same was rightly rejected. However, he submits that the other two applications ought to have been allowed for the ends of justice.
As to the application for expunging the names of the two defendants, who had died during pendency of the proceeding, this Court is of the opinion that the stage for seeking their expunction under Order 22 Rule 4 of the Code of Civil Procedure had not arrived since the suit had not reached the hearing stage when the said defendants died and it was uncertain as to whether the deceased 3 defendants would have contested the suit if they had proper notice of the same. Although the reason for rejection of such application given by the trial Judge, being that the same was filed beyond the limitation for substitution, has somewhat been diluted by certain decisions of this Court, for the reasons given herein, the said application was rightly rejected.
Regarding the application under Section 151 of the Code filed for substitution, in view of Order 22 Rules 4 and 9 of the Code of Civil Procedure, the said application is on the face of it not maintainable. As such, the same was also rightly rejected.
This Court thus does not find any reason to interfere with the order impugned herein. However, it is made clear that if the petitioners file a proper application in the context of substitution of the deceased defendant no.1, Manoranjan De, under proper provision of law, the Trial Court would consider the same independently in accordance with law without being prejudiced by the dismissal of the application under Section 151 of the Code made for the same relief.
Accordingly, C.O.2628 of 2017 is disposed of without any order as to costs.
(Sabyasachi Bhattacharyya, J.)