Gauhati High Court
Page No.# 1/2 vs Purabi Medhi And 5 Ors on 17 February, 2025
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/21
GAHC010039742022
2025:GAU-AS:1676
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP(IO)/39/2022
DIPJYOTI SAHARIA AND ANR
S/O- LATE UPENDRA SAHARIA, R/O- WARD NO. 9, BHEBARGHAT,
MANGALDAI TOWN, P.O. AND P.S. MANGALDAI, DIST. DARRANG, ASSAM,
PIN- 784125.
2: BARANYAJYOTI SAHARIA
S/O- LATE UPENDRA SAHARIA
R/O- WARD NO. 9
BHEBARGHAT
MANGALDAI TOWN
P.O. AND P.S. MANGALDAI
DIST. DARRANG
ASSAM
PIN- 784125
VERSUS
PURABI MEDHI AND 5 ORS
D/O- LATE SONARAM MEDHI, R/O- WARD NO. 9, BHEBARGHAT,
MANGALDAI TOWN, P.O. AND P.S. MANGALDAI, DIST. DARRANG, ASSAM,
PIN- 784125.
2:SMTI. PRANITA SAHARIA
W/O- LATE UPENDRA SAHARIA
R/O- WARD NO. 9
BHEBARGHAT
MANGALDAI TOWN
P.O. AND P.S. MANGALDAI
DIST. DARRANG
ASSAM
PIN- 784125.
3:SUBHAMITRA SAHARIA
D/O- LATE UPENDRA SAHARIA
Page No.# 2/21
W/O- SHRI TUSHAR SAHA
R/O- WARD NO. 3
MANGALDAI TOWN
P.O. AND P.S. MANGALDAI
DIST. DARRANG
ASSAM
PIN- 784125.
4:ON THE DEATH OF BHUPENDRA SAHARIA
HIS LEGAL HEIRS SMTI. MANORAMA MEDHI
W/O- LATE BHUPEN @ BHUPENDRA SAHARIA
R/O- WARD NO. 9
BHEBARGHAT
MANGALDAI TOWN
P.O. AND P.S. MANGALDAI
DIST. DARRANG
ASSAM
PIN- 784125.
5:BHUSHAN JYOTI SAHARIA
S/O- LATE BHUPEN @ BHUPENDRA SAHARIA
R/O- WARD NO. 9
BHEBARGHAT
MANGALDAI TOWN
P.O. AND P.S. MANGALDAI
DIST. DARRANG
ASSAM
PIN- 784125.
6:IDBI BANK
A INDIAN GOVERNMENT OWNED BANK
HAVING ITS HEAD OFFICE AT IDBI TOWER
8TH FLOOR
WTC COMPLEX CUFFE PARADE
MUMBAI-400005 AND CARRYING ON BUSINESS OF BANKING AT
DIFFERENT PLACES WITH THEIR BRANCHES THROUGHOUT INDIA AND
ABROAD AND IN PARTICULAR BRANCH AT MANGALDAI TOWN
P.O. AND P.S. MANGALDAI
DIST. DARRANG
ASSAM
PIN- 784125
REP. BY ITS BRANCH MANAGER
MANGALDAI BRANCH
Page No.# 3/21
Linked Case : CRP(IO)/40/2022
DIPJYOTI SAHARIA AND ANR
S/O- LATE UPENDRA SAHARIA
R/O- WARD NO. 9
BHEBARGHAT
MANGALDAI TOWN
P.O. AND P.S. MANGALDAI
DIST. DARRANG
ASSAM
PIN- 784125.
2: BARANYAJYOTI SAHARIA
S/O- LATE UPENDRA SAHARIA
R/O- WARD NO. 9
BHEBARGHAT
MANGALDAI TOWN
P.O. AND P.S. MANGALDAI
DIST. DARRANG
ASSAM
PIN- 784125.
VERSUS
MANORAMA MEDHI AND 5 ORS
W/O- LATE BHUPEN @ BHUPENDRA SAHARIA
R/O- WARD NO. 9
BHEBARGHAT
MANGALDAI TOWN
P.O. AND P.S. MANGALDAI
DIST. DARRANG
ASSAM
PIN- 784125.
2:BHUSHAN JYOTI SAHARIA
S/O- LATE BHUPEN @ BHUPENDRA SAHARIA
R/O- WARD NO. 9
BHEBARGHAT
MANGALDAI TOWN
P.O. AND P.S. MANGALDAI
DIST. DARRANG
ASSAM
PIN- 784125.
3:PURABI MEDHI
D/O- LATE SONARAM MEDHI
R/O- WARD NO. 9
BHEBARGHAT
Page No.# 4/21
MANGALDAI TOWN
P.O. AND P.S. MANGALDAI
DIST. DARRANG
ASSAM
PIN- 784125.
4:SMTI. PRANITA SAHARIA
W/O- LATE UPENDRA SAHARIA
R/O- WARD NO. 9
BHEBARGHAT
MANGALDAI TOWN
P.O. AND P.S. MANGALDAI
DIST. DARRANG
ASSAM
PIN- 784125.
5:SUBHAMITRA SAHARIA
D/O- LATE UPENDRA SAHARIA
W/O- SHRI TUSHAR SAHA
R/O- WARD NO. 3
MANGALDAI TOWN
P.O. AND P.S. MANGALDAI
DIST. DARRANG
ASSAM
PIN- 784125.
6:IDBI BANK
A INDIAN GOVERNMENT OWNED BANK
HAVING ITS HEAD OFFICE AT IDBI TOWER
8TH FLOOR
WTC COMPLEX CUFFE PARADE
MUMBAI-400005 AND CARRYING ON BUSINESS OF BANKING AT
DIFFERENT PLACES WITH THEIR BRANCHES THROUGHOUT INDIA AND
ABROAD AND IN PARTICULAR BRANCH AT MANGALDAI TOWN
P.O. AND P.S. MANGALDAI
DIST. DARRANG
ASSAM
PIN- 784125
REP. BY ITS BRANCH MANAGER
MANGALDAI BRANCH.
Advocate for the Petitioners : Mr. D. Mazumdar, Sr. Advocate
Mr. T. Islam, Advocate
Advocate for the Respondents : Mr. R. De, Advocate
Page No.# 5/21
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
Date of Hearing : 17.02.2025
Date of Judgment : 17.02.2025
JUDGMENT AND ORDER (ORAL)
Heard Mr. D. Mazumdar, the learned senior counsel assisted by Mr. T. Islam, the learned counsel appearing on behalf of the petitioners in both the applications filed under Article 227 of the Constitution. I have also heard Mr. R. De, the learned counsel appearing on behalf of the respondents in both the applications.
2. The CRP(IO) No.39/2022 is filed challenging the order dated 01.12.2021 passed by the learned Court of the Civil Judge, Darrang, Mangaldai in Misc. (J) Case No.22/2020 whereby an application filed by the plaintiffs seeking amendment of the plaint under Order VI Rule 17 of the Code of Civil Procedure, 1908 (for short, 'the Code') was allowed. The CRP(IO) No.40/2022 is filed against an order dated 01.12.2021 passed by the Court of the learned Civil Judge, Darrang, Mangaldai in Misc.(J) Case No.21/2020 whereby the application filed under Order I Rule 10 read with Section 151 of the Code was allowed. Taking into account that both the petitions arise out of the same suit proceedings, both the applications are taken up together for Page No.# 6/21 disposal.
3. Let this Court first take up for consideration the CRP(IO) No.39/2022.
4. From the materials on record, it is seen that the respondent Nos. 1, 2 & 3 in the instant proceedings have filed a suit being Title Suit No.21/2016 as plaintiffs. In the said suit, the plaintiffs sought for a declaratory decree that the plaintiff Nos.1 & 3 have got 2 kathas 1.3 lechas of land each as their share in the Schedule-A land. In addition to that, further declaration was sought for that the plaintiff Nos.1 & 3 have got 1 bigha 0 katha 18.5 lechas of land jointly as their share in the Schedule-C land. A declaratory decree was sought for that the plaintiff No.2 had got 15.5 lechas of land as her share in Schedule-B land. In addition to that, the plaintiffs have also sought for further declaration that no equitable mortgage could have been created in Schedule-A and Schedule-B land by the defendant No.4, and as such, the loan sanctioned in favour of the defendant Nos.1 & 2 showing security of the Schedule-A and Schedule-B land towards such loan is illegal and the equitable mortgage so created upon such land is illegal and the loan so sanctioned is not recoverable. The plaintiffs also sought for a declaratory decree that the defendant Nos.1 & 2 have fraudulently, illegally and by misrepresentation and suppression of material facts Page No.# 7/21 obtained from the Mangaldai Municipal Board permission for construction of a multi-storied commercial complex on Schedule- A and Schedule-B land, and as such, the permission is liable to be cancelled. The plaintiffs have also sought for permanent injunction.
5. Pursuant to the filing of the said suit being Title Suit No.21/2016, the defendant Nos.1 & 2 filed their written statement denying the claims of the plaintiffs. In addition to that, the defendant No.3 also submitted a written statement.
6. After filing of the written statements, the plaintiffs filed an application under Order VI, Rule 17 of the Code seeking amendment of the plaint. By way of the amendment, the plaintiffs sought to include a prayer for partition of the suit land. This was done so in view of the fact that the defendants had raised the plea of partition on the ground of co-ownership and co-sharers.
7. The defendant Nos.1 & 2 filed their written objection stating that if the amendment is allowed, it would change the nature and character of the suit.
8. The learned Trial Court, i.e. the Court of the Civil Judge, Darrang, Mangaldai vide an order dated 01.12.2021 had allowed the said application seeking amendment. The reason assigned by Page No.# 8/21 the learned Trial Court was that in the said suit the trial is yet to begin. Secondly, the defendants had raised the plea of partition on the ground of co-ownership and co-sharer, and as such, it was necessary to allow the plaintiffs to include the relief for partition. Thirdly, the learned Trial Court had also taken note of that by way of the proposed amendment, the plaintiffs had also sought to include certain subsequent events. In addition to that, the learned Trial Court had also taken note of that the prejudice so raised by the defendants was misconceived as they would get ample opportunity to submit additional written statement. It is under such circumstances, the application seeking amendment of the plaint was allowed.
9. This Court has duly perused the impugned order dated 01.12.2021 passed in Misc. (J) Case No.22/2020. The jurisdiction so exercised by the learned Trial Court to permit the amendment is at the stage when the trial is yet to begin. This Court has also duly taken note of that the learned Trial Court had duly applied its mind in allowing the application seeking amendment of the plaint. Under such circumstances, this Court does not find the present proceedings to be a fit case for invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution in so far as the order dated 01.12.2021 passed in Misc. (J) Case No.22/2020.
Page No.# 9/21
10. Now let this Court take up the dispute involved in CRP(IO) No.40/2022. In the said suit so filed by the plaintiffs, the defendant No.3 expired after submitting his written statement. Subsequent thereto on 07.07.2020, the legal representatives of the defendant No.3 who are the respondent Nos.1 & 2 in the instant proceedings filed an application to implead themselves in the said suit. The petitioners herein who were the defendant Nos.1 & 2 in the said suit, objected to the said application in as much as the suit had abated against the defendant No.3, and as such, the respondent Nos.1 & 2 in the instant proceedings could not be brought on record by way of filing an Application under Order I, Rule 10 of the Code. The learned Trial Court vide the order dated 01.12.2021 passed in Misc. (J) Case No.21/2020 allowed their application by striking out the name of the defendant No.3 and substituting the respondent Nos.1 & 2 herein in the said suit in place of the defendant No.3. It is under such circumstances, the present application is filed.
11. This Court has duly taken note of the order dated 01.12.2021 passed in Misc. (J) Case No.21/2020 wherein the learned Trial Court took into consideration that although the defendant No.3 had expired in the year 2018 after filing of the written statement, but there was no information given by the counsel who represented the defendant No.3 that the defendant Page No.# 10/21 No.3 had expired on 23.01.2018. The learned Trial Court further observed that the applications were filed seeking impleadment under Order I Rule 10 of the Code by the legal representatives of the defendant No.3 which was not barred by limitation, and as such, the said application was allowed by taking note of that the defendant No.3 had expired and the applicants who are respondent Nos.1 & 2 herein were substituted against the name of the defendant No.3. The question arises as to whether this Court ought to interfere with the order dated 01.12.2021 passed in Misc. (J) Case No.21/2020.
12. Order XXII of the Code is titled "Death, Marriage and Insolvency of Parties". Rule 4 of the Code thereof lays down the procedure in a case of death of one of the several defendants or of the sole defendant. It is clear on a perusal of the said Rule 4 of the Code that it does not expressly provide who between the parties to a civil suit is to present an application for substitution. In the case of Union of India vs. Ram Charan (deceased) Through His Legal Representatives, reported in AIR 1964 SC 215, the Supreme Court held at paragraph No.10 as herein under:-
"10. It is not necessary to consider whether the High Court applied its earlier Full Bench decision correctly or not when we are to decide the main question urged in this appeal and that being the first contention. Rules 3 and 4 of Order 22 CPC lay down respectively the procedure to Page No.# 11/21 be followed in case of death of one of several plaintiffs when the right to sue does not survive to the surviving plaintiffs alone or that of the sole plaintiff when the right to sue survives or of the death of one several defendants or of sole defendant in similar circumstances. The procedure requires an application for the making of the legal representatives of the deceased plaintiff or defendant a party to the suit. It does not say who is to present the application. Ordinarily it would be the plaintiff as by the abatement of the suit the defendant stand to gain. However, an application is necessary to be made for the purpose. If no such application is made within the time allowed by law, the suit abates so far as the deceased plaintiff is concerned or as against the deceased defendant. The effect of such an abatement on the suit of the surviving plaintiffs or the suit against the surviving defendants depends on other considerations as held by this Court in State of Punjab v. Nathu Ram and Jhandha Singh v. Gurmukh Singh. Anyway, that question does not arise in this case as the sole respondent had died."
13. From the above judgment, it is clear that there seems to be no legal requirement that on the death of a defendant, an application for substitution in all cases has to be made by the plaintiff only. An application therefore can be made by the heirs/legal representatives of the deceased defendant seeking an order to allow him/them to step into the shoes of the deceased defendant and to contest the suit can be considered.
14. In the Constitution Bench judgment of the Supreme Court Page No.# 12/21 in the case of Sardar Amarjit Singh Kalra vs. Promod Gupta , reported in (2003) 3 SCC 272, the Supreme Court observed that a careful reading of the provisions contained in Order XXII of the Code would lend credit and support that they are devised to ensure the continuation and culmination in an effective adjudication and not to retard the further progress of the proceedings. Paragraph No.26 of the said judgment is reproduced herein below:-
"26. Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on merits of substantial rights of citizen under personal, property and other laws. Procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice. A careful reading of the provisions contained in Order 22 CPC as well as the subsequent amendments thereto would lend credit and support to the view that they were devised to ensure their continuation and culmination in an effective adjudication and not to retard the further progress of the proceedings and thereby non-suit the others similarly placed as long as their distinct and independent rights to property or any claim remain intact and not lost forever due to the death of one or the other in the proceedings. The provisions contained in Order 22 are not to be construed as a rigid matter of principle but must ever be viewed as a flexible tool of convenience in the administration of justice.
Page No.# 13/21 The fact that the khata was said to be joint is of no relevance, as long as each one of them had their own independent, distinct and separate shares in the property as found separately indicated in the jamabandi itself of the shares of each of them distinctly. We are also of the view that the High Court should have, on the very perception it had on the question of abatement, allowed the applications for impleadment even dehors the cause for the delay in filing the applications keeping in view the serious manner in which it would otherwise jeopardize an effective adjudication on merits, the rights of the other remaining appellants for no fault of theirs. Interests of justice would have been better served had the High Court adopted a positive and constructive approach than merely scuttled the whole process to foreclose an adjudication of the claims of others on merits. The rejection by the High Court of the applications to set aside abatement, condonation and bringing on record the legal representatives does not appear, on the peculiar nature of the case, to be a just or reasonable exercise of the Court's power or in conformity with the avowed object of the Court to do real, effective and substantial justice. Viewed in the light of the fact that each one of the appellants had an independent and distinct right of his own not interdependent upon one or the other of the appellants, the dismissal of the appeals by the High Court in their entirety does not constitute a sound, reasonable or just and proper exercise of its powers. Even if it has to be viewed that they had a common interest, then the interests of justice would require the remaining Page No.# 14/21 other appellants being allowed to pursue the appeals for the benefit of those others, who are not before the Court also and not stultify the proceedings as a whole and non-suit the others as well."
Upon a perusal of the above quoted paragraph and reading the same in the light of the provisions of Order XXII of the Code and the definition of "legal representatives" as defined in Section 3 (11) of the Code, it is the opinion of this Court that what the Court is required to ensure that the estate of the deceased is being represented so that it ensures continuation and culmination of the proceedings on merits. It is the opinion of this Court, if it is brought to the attention of the Court that a plaintiff(s)/appellant(s) or defendant(s)/ respondent(s) had expired during the pendency of the suit/Appeal, due opportunity be granted so that the names of the legal representatives are brought on record to represent the estate of the deceased. This Court however observes that inspite of the opportunity being granted if no steps are being taken, the Court has to proceed in accordance with the mandate of Rule (3) and Rule (4) of Order XXII of the Code as the case may be taking into account that the abatement takes place automatically without any further act of the Court.
15. In a recent judgment of the Supreme Court in the case of Page No.# 15/21 Om Prakash Gupta Alias Lalloowa (Now Deceased) & Others vs. Satish Chandra (Now Deceased), reported in 2025 SCC OnLine SC 291, the Supreme Court observed at paragraph No.16 that once an application has been made by either of the party and the Court has been informed about the death of a party and who the heir of the legal representatives he had left behind, the only thing that remains for the Court is to pass an order substituting the heir/the legal representatives. Paragraph Nos.16, 19 & 20 of the said judgment being relevant, is reproduced herein under:-
"16. The law, laid down in Ram Charan (supra), is clear. There seems to be no legal requirement that on the death of a defendant, an application for substitution in all cases has to be made by the plaintiff only and that, any application, made by the heir(s)/legal representative(s) of the deceased defendant seeking an order to allow him/them step into the shoes of the deceased defendant and to contest the suit, cannot be considered. Once an application has been made by either party and the court has been informed about the death of a party and who the heir(s)/legal representative(s) he has left behind, the only thing that remains for the court is to pass an order substituting the heir(s)/legal representative(s). Such being the case, we have no doubt in holding that the application moved by the heirs of Satish Chandra (Civil Misc. Substitution Application No. 211 of 1997), whereby the court was informed by them of his death and the heirs that he had left behind, amounted to an application for substitution which was legally permissible and valid and deserved consideration.
Page No.# 16/21
19. In our opinion, the law not having expressly mandated that an application for substitution has to be filed by the plaintiff/appellant upon receiving intimation of death, requiring a formal application from the plaintiff only will serve no tangible purpose. A justice-oriented approach has to be followed in interpreting the provisions of the CPC is the well settled law. Reference may usefully be made to the decision in Chinnammal v. P. Arumugham, where it was held:
"17. It is well to remember that the Code of Civil Procedure is a body of procedural law designed to facilitate justice and it should not be treated as an enactment providing for punishments and penalties. The laws of procedure should be so construed as to render justice wherever reasonably possible. It is in our opinion, not unreasonable to demand restitution from a person who has purchased the property in court auction being aware of the pending appeal against the decree."
(emphasis supplied)
20. The High Court having been duly informed of the death of Satish Chandra, and substitution having been prayed by the heirs of the deceased, it ought to have proceeded to consider such application and pass an order bringing the heirs of the deceased respondent on record. This, the High Court omitted to order, perhaps, due to inadvertence whereby pendency of the application for substitution filed by the heirs of Satish Chandra escaped its notice."
16. This Court further finds it relevant to take note of another aspect of the matter which the Supreme Court dealt with in the case of Om Prakash Gupta (supra) while dealing with the Page No.# 17/21 provision of Order XXII Rule 10A of the Code and observed that the said Rule cast a duty upon a pleader appearing for a party to a suit to intimate the Court about the death of such party. It was further observed that once the Court is informed by the pleader of the party that he/she is no more, the Court shall notify the opposite party of the death. The Supreme Court opined that a straightforward interpretation of this Rule would suggest that the Court's obligation to issue notice to the other party is indeed mandatory. However, there is one notable exception, i.e. when the information regarding the party's death is conveyed to the Court in presence of the opposing party's pleader or is documented by the Court in the order sheet and in such case, if the pleader of the concerned party, and consequently the party itself has already been notified, issuing a further notice from the Court would not serve any substantial purpose other than being an exercise by way of abandoned caution. Paragraph Nos.27 to 30 of the said judgment is reproduced herein under:-
"27. In this context, it is fruitful to refer to Order XXII Rule 10-A, CPC.
The same is reproduced below for convenience:
"Wherever a pleader appearing for a party to the suit comes to know of the death of that party, he shall inform the Court about it, and the Court shall there upon give notice of such death to the other party, and, for this purpose, the contract between the pleader and the deceased party shall be deemed to subsist."
Page No.# 18/21
28. Rule 10-A was not originally contained in CPC, but was inserted in the CPC in the year 1976 for a noble purpose which has been acknowledged by this Court in multiple decisions. The first of such decisions, perhaps, is Gangadhar v. Raj Kumar where this Court held:
"3. ... Rule 10-A which has been added in Order XXII of the Code of Civil Procedure by the Amending Act of 1976 provides that when a pleader appearing for a party to the suit comes to know of the death of the party, he shall inform the court about it and the court thereafter shall issue notice to the other party. In the case of an appeal, the word 'suit' has to be read as 'appeal'. This provision was introduced specifically to mitigate the hardship arising from the fact that the party to an appeal may not come to know about the death of the other party during the pendency of the appeal but when it is awaiting its turn for being heard. The appeal lies dormant for years on end and one cannot expect the other party to be a watch-dog for day-to-day survival of the other party. When the appeal on being notified for hearing is activated, knowledge occasionally dawns that one or the other party has not only died, but the time for substitution has run out and the appeal has abated. In order to see that administration of justice is not thwarted by such technical procedural lapse, this very innovative provision has been introduced, whereby, a duty is cast upon the learned advocate appearing for the party who comes to know about the death of the party to intimate to the court about the death of the party represented by the learned counsel and for this purpose a deeming fiction is introduced that Page No.# 19/21 the contract between dead client and lawyer subsists to the limited extent after the death of the client.
(emphasis supplied)
29. Rule 10-A casts a duty upon a pleader appearing for a party to the suit to intimate the court about the death of such party. It further provides that once the court is informed by the pleader of a party that he is no more, the court "shall" notify the opposing party of the death. A straightforward interpretation of this rule would suggest that the court's obligation to issue notice to the other party is indeed mandatory. Nonetheless, this obligation may not arise in all circumstances. One notable exception could be when the information regarding the party's death is conveyed to the court in the presence of the opposing party's pleader or is documented by the court in the order sheet. In such cases, if the pleader of the concerned party (and consequently the party itself) has already been notified, issuing a further notice from the court would not serve any substantial purpose other than being an exercise by way of abundant caution. Therefore, in the aforementioned scenario, the absence of a notice from the court would not imply a failure to comply with Rule 10A, suggesting that it is not "always mandatory".
30. Had the circumstance outlined above applied to the present appeal, we would have likely concluded that Rule 10-A has been substantially complied with. However, the facts in this instant case are not particularly clear-cut. As previously noted, in the affidavit submitted alongside an application by Anil Kumar which primarily was not intended to inform the court of Rooprani's death, it was stated that Page No.# 20/21 he is "one of the sons of deceased Rooprani". The inclusion of such pertinent information within an inconspicuous section of an application meant for a different purpose without the date of death does not, in our considered view, constitute sufficient compliance with Rule 10-A either by the pleader of the deceased or amount to due notice to Om Prakash by the court (without such death being recorded in any order passed subsequently in the presence of counsel for Om Prakash). To rule otherwise would undermine the intention of Rule 10-A, which mandates the clear communication of information relating to death of a party which, obviously, would mean not only the factum of death being conveyed but also the date of death since limitation to apply under Article 120 of the Limitation Act, 1963 for substitution begins to run from the date of death. It is implicit that this information must be conveyed in a straightforward and unambiguous manner to enable the plaintiff or the appellant, as the case may be, to take steps and apply for substitution. No advantage should be allowed to be derived if such death is, by clever drafting, sought to be disclosed in an obscure corner of an application seeking to bring to the notice of the court an alleged subsequent development resulting in violation of a court's order."
17. In the backdrop of the above, it is therefore seen that it is not mandatory that only the plaintiff who is required to file an application for substitution in all cases, and even an application can be made by the heir/legal representative of the deceased defendant. Further to that, it is also seen that the defendant No.3 was duly represented in the suit and had filed a written Page No.# 21/21 statement through a counsel. The counsel never intimated the plaintiffs or the Court about the death inspite of the obligation being cast under Order XXII Rule 10A of the Code.
18. Consequently, this Court is of the opinion that the learned Trial Court was justified in passing the order dated 01.12.2021 by allowing the said application being registered as Misc. (J) Case No.21/2020.
19. In that view of the matter, both the applications filed under Article 227 of the Constitution are meritless for which the same stand dismissed.
20. It is further seen that this Court vide orders had stayed the further proceedings of Title Suit No.21/2016 pending before the Court of the learned Civil Judge, Darrang, Mangaldai. The stay of the suit proceedings is vacated and the parties who are duly represented are directed to appear before the learned Trial Court on 24.03.2025.
21. The learned Trial Court shall proceed with the disposal of the suit expeditiously taking into account that the suit has been pending for almost a decade.
JUDGE Comparing Assistant