(Smt. Shipra Chakraborty vs M/S. Tha
2022 Latest Caselaw 8472 Cal

    7
19.12.2022
Ct. No. 32
   rrc


                                 FAT 151 of 2021
                                       with
                               IA No. CAN 1 of 2021
                                       with
                               IA No. CAN 2 of 2021
                                       with
                               IA No. CAN 3 of 2022

                     (Smt. Shipra Chakraborty Vs. M/s. THA
                               Enterprise & Anr.)



                Mr. Sudip Ghosh
                Mr. Ashis Kumar Dutta
                                          ..... For the appellant

                Mr. Q.A.M. Firoz
                Mr. Arun Shaw
                                          ..... For the respondents

Affidavit-of-service filed by the appellant/applicant be

kept on record. No one appears on behalf of the

proposed respondents, namely, Shanti Mondal and

Sabitri Mondal.

Re: CAN 3 of 2022

This application has been filed for substitution

and/or addition of parties upon condonation of delay and

upon setting aside abatement.

The present appeal has been filed assailing an ex

parte judgment and decree passed on 15th February,

2021. The defendant, namely, Bapi Mondal died on 16 th

May, 2021 but the plaintiff/appellant was ignorant of

such fact and he got the information about the date of

death of the defendant in the month of March, 2022 and

thereafter, he has filed this application on 11 th May,

2022.

Mr. Ghosh, learned advocate appearing for the

plaintiff/appellant submits that he has calculated the

delay in filing this application from the date of death

being 16th May, 2021 and accordingly, he has sought for

condonation of delay of 360 days in filing the application.

Mr. Firoz, learned advocate enters appearance on

behalf of the proposed respondent, namely, Sonali

Mondal. By filing an affidavit-in-opposition, it has been

claimed that Sonali Mondal is the wife of Bapi Mondal

and a certificate of marriage and certificates of birth of

two children, namely, Sudipa Mondal and Sumona

Mondal have been annexed to the opposition.

Mr. Firoz submits that Sonali and her two daughters

are the legal representatives and/or heirs of deceased

Bapi Mondal and they are required to be added as

parties.

Answering our query, Mr. Ghosh informs that the

mother of Bapi Mondal, namely, Shanti Mondal is still

alive and submits that before filing of this application, he

got the information that Bapi Mondal had two wives and

hence, he proposed that both Sabitri Mondal and Sonali

Mondal, should be added as parties.

As no one appears on behalf of Sabitri Mondal in

spite of service, Mr. Ghosh submits that at the risk and

peril of the plaintiff/appellant only Shanti Mondal, Sonali

Mondal and two minor daughters Sudipa Mondal and

Sumana Mondal may be substituted in place and stead

of Bapi Mondal.

In view of the order passed by the Hon'ble Supreme

Court, the period upto 28th February, 2022 stands

excluded from the period of limitation and the application

for substitution and/or addition of party has been filed

on 11th May, 2022, i.e., before 90 days and as such, the

prayers for condonation of delay and setting aside of

abatement are redundant.

In the said conspectus and considering the

submissions as advanced, the application being CAN 3 of

2022 is allowed. It is, however, clarified that this order

shall not be treated as a determination under Order 22

Rule 5 of the Code.

Let Shanti Mondal, Sonali Mondal, particulars of

whom have been detailed in paragraph 2 of this

application and two minor daughters, namely, Sudipa

Mondal and Sumana Mondal, particulars of whom have

been detailed in paragraph 5 of the affidavit-in-

opposition, who would be represented by their mother,

be substituted in place and stead of Bapi Mondal.

Office is directed to effect necessary correction in the

cause title of the memorandum of appeal.

The application being CAN 3 of 2022 is, accordingly,

disposed of.

Let hearing of the appeal be expedited.

As Mr. Firoz, learned advocate enters appearance on

behalf of the added respondents, namely, Sonali Mondal

and her two minor daughters, service of notice of appeal

upon the said respondents is dispensed with.

The appellant is directed to put in the requisites for

effecting service of notice of appeal upon the other

respondents, within two weeks after the vacation.

Lower Court Records be called for through Special

Messenger at the cost of the appellant. Such costs shall

be deposited within two weeks from date.

Immediately, after arrival of the Lower Court Records,

the office shall examine the same and, if found complete,

shall issue notice of arrival of Lower Court Records to the

learned advocate for the appellant.

The appellant is directed to prepare requisite

number of informal paper books-printed, typewritten or

cyclostyled, as the case may be, out of Court and to file

the same, within four weeks from the date of service of

notice of arrival of Lower Court Records.

All formalities regarding preparation of paper books

are dispensed with but the learned advocate for the

appellant is directed to incorporate all the relevant

documents in the informal paper books.

Liberty to mention after filing of paper book.

(Partha Sarathi Chatterjee, J.) (Tapabrata Chakraborty, J.)