Sambhu Nath Chatterjee vs Amrit Kumar Paira & Ors
2022 Latest Caselaw 993 Cal

11.                                        FMA 1231 of 2021
      04-03-2022
sg
                                            CAN 1 of 2021
        Ct. 8
                                    Sambhu Nath Chatterjee
                                              Versus
                                    Amrit Kumar Paira & Ors.

                                     (Through Video Conference)


                          Mr. Ramdulal Manna, Adv.
                          Mr. Sayan Mukherjee, Adv.
                                                        ...for the appellant


                          In spite of service, the respondents are not represented nor

any accommodation is prayed for on behalf of the respondents.

The present appellants were the applicants before the

learned Appellate Court in J. Misc. Case No. 07/21. The

applicants preferred an appeal before the learned First Appellate

Court being T.A. No. 13/14 on 10 th December 2014 against the

judgment and decree passed by the learned Trial Court in TS 69 of

2002 dated 18th September, 2014. During the hearing of the

appeal, it was revealed that one of the plaintiffs, namely, Tapan

Mukherjee and one of the defendants namely, Harihar Santra died

during the pendency of the original suit and that the plaintiffs did

not cause their substitution and thus the legal representatives of

the deceased were not substituted before the learned Trial Court,

due to which, the learned Trial Court passed the impugned

judgment and decree against one dead person. It was, on such,

consideration, the learned Appellate Court allowed the appeal on

contest on 17th April, 2021 without going into the merits of the

appeal and remanded the case for correction of the judgment and

decree giving the appellant liberty to file a fresh appeal after

necessary correction.

The appellant/petitioner filed an application for review of

the said order dated 17th April, 2021. The learned Appellate Court

recorded that, in order to clear the error apparent on the face of

record having arisen from the fact that the Appellate Court had not

set aside the judgment and decree of the Trial Court in explicit

terms, which now needs to be correct and rectified. Accordingly,

the learned Appellate Court has allowed the review application

thereby the judgment and decree passed by the learned Trial Court

in TS 69 of 2002 was set aside.

We are aware that the order dated 17th April, 2021 was not

under challenge. However, we feel that the learned Appellate

Court has committed fundamental error in not deciding whether

the suit had abated by reason of the plaintiffs not taking

appropriate steps for substitution of the legal heirs of the deceased

plaintiff and the defendant as required by law and whether the

provisions of Order XXII Rule 4 would apply in the given facts

and circumstances of the case. The Appellate Court has also

required to find out whether there is any joint cause of action and

whether the right to sue survives for the rest of the plaintiffs who

are already on record after the death of one of the plaintiffs.

Similarly, before the suit had abated by reason of the death of one

of the defendant whether the appellants before Appellate Court

could proceed with a suit against the rest of the defendants.

These issues, we feel, should have been taken into

consideration by the Appellate Court before setting aside the

judgment and decree passed by the learned Trial Court.

Accordingly, we set aside the order dated 20 th September,

2021 and this will also result in setting aside of the order dated

17th April, 2014 as it was not decided after taking into

consideration the aforesaid facts.

The First Appellate Court is directed to hear TA 14/14

filed on 10th December, 2014, afresh after taking into

consideration our observations.

Since the respondents are not represented in spite of

notice, the appellant shall communicate this order to the

respondents by speed post with acknowledgment due within one

week from date.

The Learned Registrar Administration (L&M) is directed

to communicate this order to the learned Additional District

Judge, 1st Court, Jhargram for taking appropriate steps.

We request the learned Additional District Judge, 1st Court,

Jhargram to decide the appeal being TA 13/14 as expeditiously as

possible.

In addition to aforesaid, the appellant shall put in the

requisites for service of this order upon the respondents within one

week from date.

With the observations, FAM 1231 of 2021 and CAN 1 of

2021 are disposed of accordingly.

Urgent photostat certified copy of this order, if applied for,

be supplied to the parties upon compliance of requisite formalities.

 (Ajoy Kumar Mukherjee, J.)                     (Soumen Sen, J.)