Calcutta High Court (Appellete Side)
Rina Ghosh & Ors vs Smt. Arati Mondal & Ors on 2 March, 2023
02.03.23 FAT 719 of 2018
Sl-03 with
Ct.32 CAN 1 of 2022
(S.R.) and
CAN 2 of 2023
Rina Ghosh & Ors.
v.
Smt. Arati Mondal & Ors.
Mr. Subhojit Seal ... for the appellants.
Mr. Krishna Deo Das ... for the respondents.
In re: CAN 2 of 2023
This application has been filed praying for an order
to expunge the names of the appellant nos.1, 3 and the
respondent no.5 from the cause title of the memorandum
of appeal.
Mr. Seal, learned advocate appearing for the
appellants submits that during pendency of this appeal
the respondent no.5, who happened to be one of the legal
heirs of the original tenants, has expired.
He further submits that in view of Section 2(g) of
the West Bengal Premises Tenancy Act, 1997, the
respondent no.5, namely, Swapan Mondal had lost right
to tenancy in respect of the demised premises and hence,
right to sue against the legal heirs of the respondent no.5
does not survive. In support of such contention he relied
upon a judgement delivered in the case of Montee Dey v.
Chandralekha Roy, reported in (2010) 3 CHN 443 (Cal).
He contends that for this cause, he does not want to
proceed against the legal heirs of the respondent no.5.
He further submits that during pendency of this
appeal the appellant no.1, namely, Rina Ghosh expired on
28th November, 2022 leaving behind the appellant nos.2
and 3 as her legal heirs. The appellant no.3 has sold out
her share of the suit property in favour of the appellant
no.2 and hence, he want to expunge the name of the
appellant nos.1 and 3.
Since appellant no.1 has expired leaving behind her
legal heirs who are already on record, let the name of the
appellant no.1 be expunged.
During pendency of the appeal, the appellant no.3
has transferred his share of the suit property in favour of
the appellant no.2 and hence , interest of appellant no.3
has devolved upon the appellant no. 2 .
In view thereof, since the appeal is continuation of
the suit and since interest of appellant no. 3 has devolved
upon the appellant no. 2, let the appellant no.2 alone
continue to proceed with the appeal in absence of
appellant no. 3 and hence , let the name of appellant no.
3 be expunged from the cause title of the memorandum of
appeal .
Without going to delve into the contour of
controversy as to whether right to sue survives against
the legal heirs of the respondent no. 5 at this stage, since
the respondent no. 5 has died and appellant does not
want to proceed against the legal heirs of respondent
no.5, let the name of the respondent no.5 be expunged
from the cause title of memorandum of appeal at the own
risk of the appellant.
Accordingly, the application being CAN 2 of 2023 is
disposed of.
In re: CAN 1 of 2022
This application has been filed praying for
condonation of delay of 69 days in preferring the appeal.
The learned advocate appearing for the appellants
submits that due to the cause enumerated in paragraphs
7, 8, 9 and 10 of the application, which are sufficient in
his view, the appellants could not prefer the appeal within
the prescribed period. He further submits that the delay
is required to be condoned.
The learned advocate enters appearance on behalf
of all the respondents opposes such prayer.
Heard the learned advocates and perused the
materials placed before us.
From the paragraphs 7 to 10 of the application , it
transpires that after the decree was passed , appellant
instructed the learned advocate who conducted his case
before the learned trial court to take steps to obtain
certified copy of the judgment and decree but proper steps
for that purpose had not been taken and then appellant
was forced to engage another learned advocate to obtain
the certified copies of judgment and decree impugned and
to prefer the present appeal and hence, for this case ,
there was delay of 69 days in preferring the appeal.
In view of such facts and circumstances, we do not
find any mala fide attitude on the part of the appellant
and also we do not find that the appellant took recourse
to dilatory tactics and consequently, we are satisfied with
the explanation given towards delay in preferring the
appeal.
Accordingly, the delay is condoned. The application
being CAN 1 of 2022 is, thus, disposed of.
Let the hearing of the appeal be expedited.
Since Mr. Das, learned advocate has entered
appearance on behalf of the respondents, service of notice
of appeal upon the said respondents is dispensed with.
The appellants are directed to put in the requisites
for service of notice of appeal upon all the respondents
within two weeks from date.
Lower Court records be called for through Special
Messenger at the cost of the appellants. Such cost 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 appellants.
The appellants are directed to prepare and file
requisite number of informal paper books-printed,
typewritten or cyclostyled, as the case may be out of
Court, within four weeks from the date of service of notice
of arrival of Lower Court Records and shall file the same
after serving a copy thereof upon all the respondents.
All formalities regarding preparation of paper books
are dispensed with but the learned advocate for the
appellants are directed to incorporate all relevant
documents in the informal paper books.
Liberty to mention for final hearing of the appeal
after filing of the paper books.
Urgent photostat certified copy of this order, if
applied for, be supplied to the parties, upon compliance of
all requisite formalities.
(Partha Sarathi Chatterjee, J.) (Tapabrata Chakraborty, J.)
