Amit Kumar Paul & Anr vs Sudipti Paul & Ors

Calcutta High Court

Amit Kumar Paul & Anr vs Sudipti Paul & Ors on 1 May, 2024

OD-22
                                ORDER SHEET
                      IN THE HIGH COURT AT CALCUTTA
                       Ordinary Original Civil Jurisdiction
                                ORIGINAL SIDE

                                  CS/236/2018
                               IA NO: GA/2/2019
                            (Old No:GA/2374/2019)
                                   GA/5/2022
                                   GA/6/2023

                          AMIT KUMAR PAUL & ANR.
                                     VS
                            SUDIPTI PAUL & ORS.


  BEFORE:
  The Hon'ble JUSTICE KRISHNA RAO

Date : 1st May, 2024.

Appearance :

Mr. Aniruddha Mitra, Adv.

Mr. Avirup Chatterjee, Adv.

...for the plaintiff Mr. Meghnad Dutta, Adv.

Mr. Niket Ojha, Adv.

Mr. Arindam Paul, Adv.

...defendant No.6 (in person) Mr. Rohit Banerjee, Adv.

Ms. Debarati Das, Adv.

...For the Defendant No.4 The Court: Mr. Aniruddha Mitra, learned Counsel, is appearing for the plaintiffs. Mr. Meghnad Dutta, learned Counsel, is appearing for the defendant nos. 1,2,3,5 and 13. Mr. Arindam Paul, the defendant No. 6 is appearing in person. Mr. Rohit Banerjee, learned Counsel, is appearing for the defendant No.4.

Counsel for the plaintiff No.2 has filed the present application praying for condoning the delay to file the present application for recording the 2 death of the defendant No.4 and for substitution of the legal heirs of the defendant No.4.

The plaintiff No.2 says that the defendant No.4 died on 29th August, 2022 leaving behind three legal heirs. Though the defendant No.4 died on 29th August, 2022 but the present application is filed in the month of December, 2023.

Counsel for the plaintiffs submits that the plaintiff No.1 was suffering from chronic coronary artery disease and other cardiovascular ailments and defendant No.2 is also an aged person and suffering from various ailments and as such, the plaintiffs were not in a position to file the application within the prescribed time.

Counsel for the plaintiff has brought the original documents to show that the plaintiff No.1 was under medical treatment due to which the application could not be filed within the prescribed time.

Counsel for the plaintiffs have relied upon the judgment reported in (2016) 1 Supreme Court Cases, 607 and submitted that in the above case the Hon'ble Supreme Court held that the provisions of Order 22 of the Code of Civil Procedure are not penal in nature and is a rule of procedure and substantial rights of the parties cannot be defeated by pedantic approach by observing strict adherence to the procedural aspect of law.

Counsel for the defendant Nos. 1, 2, 3, 5, and 13 has strongly opposed the application filed by the plaintiff No.2 and submits that the medical document which in the plaintiff No.2 had relied upon is from the month of May, 2023 onwards though the defendant No.4 died on 29th 3 August, 2022. He submits that there are some other documents which are of 2019 and in between the year 2022 and April, 2023.

Counsel for the defendant Nos. 1, 2, 3, 5, and 13 further submits that though the plaintiffs have relied upon the documents of the plaintiff No.1 but in the suit as well as this application has been affirmed by the plaintiff No.2, but there is no explanation why the plaintiff No.2 has not taken any steps within the prescribed time for filing the appropriate application for recording the death of the defendant No.4 and substitution of the legal heirs of defendant No.4.

The defendant No.6 is appearing in person and submits that only to delay the suit, the plaintiffs have not filed the present application within the time limit though the plaintiffs have the knowledge that the defendant No.4 died on 29th August, 2022.

Mr. Rohit Banerjee, learned Counsel appearing for the legal heirs of the defendant No.4 and submits that if this Court will not allow the application filed by the plaintiffs for recording the death of defendant No.4 and substitution of the legal heirs of defendant No.4 then the legal heirs of the defendant No.4 have to take appropriate steps for addition of party, as after the death of the defendant No.4 the legal heirs have acquired their right and title over the property in question.

Heard the learned Counsel for the respective parties. Perused the application, document and the judgment relied by the plaintiffs.

Admittedly, the defendant No.4 died on 29th August, 2022 but the present application is filed by the plaintiff No.2 in the month of December, 4 2023. In this application the defendant No.2 has taken the ground that the plaintiff No.1 was suffering from chronic ailments and has also relied upon the medical document. But the medical document which the plaintiff No.1 has relied upon is either prior to the year 2022 or after the month of May, 2023. There is no document to show that from the year 2022 and in between in the month of August, 2022 and May, 2023 the plaintiff No.1 was suffering from any aliments.

If the submissions of the plaintiff No.2 is accepted that the plaintiff No.1 was suffering from ailments but there is no explanation about the plaintiff No.2. The plaintiff No.2 has filed the present application for recording the death of the defendant No.4 and substitution of the legal heirs.

Considering the above, this Court has not satisfied with the explanation given by the plaintiffs for filing the application after the period of more than one year but this Court keeping in mind that the suit filed by the plaintiff is for partition and if the legal heirs of the defendant No.4 were not brought on record, their right will be affected in the property and as such keeping in mind of the right of the legal heirs of the defendant No.4, this Court allows the application subject to payment of costs of Rs.20,000/-.

Let the amount be paid to the Legal Services Authority within a week from date.

The plaintiff has also prayed for issuance of fresh writ of summons upon the defendant Nos.12 and 17.

Accordingly, prayers (b), (c), (d), (e), (g) and (h) of the Mater's Summons are allowed.

The defendant in prayer (f) of the application has prayed for striking off the defence of the defendant Nos.7 to 10, 14, 15 and 16 but it is found from the record that defendant Nos. 7 to 10, 14, 15 and 16 have not filed their written statements and as such, question of striking out their defence do not arise but the suit shall be proceeded undefended against the defendant Nos. 7 to 10, 14, 15 and 16.

GA/5/2022 is thus disposed of accordingly.

(KRISHNA RAO, J.) S.De