Ashok Ramniklal Mansata vs Chandrakant Girdhardas Mansata & ...
2023 Latest Caselaw 2600 Cal/2

                 IN THE HIGH COURT AT CALCUTTA
                 (Ordinary Original Civil Jurisdiction)
                             ORIGINAL SIDE


Present:

The Hon'ble Justice Krishna Rao



                            IA No: GA 2 of 2022

                            In CS 212 of 2019


                       Ashok Ramniklal Mansata
                                  Versus
               Chandrakant Girdhardas Mansata & Ors.




           Mr. Rupak Ghosh
           Mr. Ayan Dutta
           Mr. Abhijit Sarkar
           Mr. Abhik Chitta Kundu
                                        ... For the plaintiff/petitioner.

           Mr. Debasish Kundu, Sr. Adv.
           M. Debnath Ghosh
           Mr. A. Kundu
           Mr. Aniket Chaudhury
           Mr. A. Kundu
           Mr. Biswaroop Mukherjee
                                     ... For the defendants/respondents.

Hearing Concluded On : 10.08.2023

Judgment on : 12.09.2023

Krishna Rao, J.:

1. The plaintiff has filed the instant application being G.A No. 2 of 2022

for the substitution of the legal heirs deceased defendant no.1. The

plaintiff has filed the suit being C.S No. 212 of 2019 for partition of the

immovable property situated at 10B, Middleton Street, Kolkata. During

the pendency of the suit, the defendant no.1 expired intestate on 22nd

December, 2020 leaving behind his wife and daughter.

2. As per the contention of the plaintiff, the plaintiff came to know about

the death the defendant no.1 sometimes in the 1st Week of April' 2021

from the defendant no. 2. It is further contended that the defendants

have also filed another suit being C.S No. 208 of 2018 against the

plaintiff. The deceased defendant no.1 was the plaintiff no. 2 in the said

suit. The plaintiffs of C.S No. 208 of 2018 have filed an application

being G.A No. 5 of 2021 for substitution of the legal heirs of the plaintiff

no. 2 and the said application was served to the plaintiff (defendant in

C.S 208 of 2018) on 15th November, 2021. The application filed by the

plaintiffs in C.S No. 208 of 2018 was allowed and the legal heirs of the

plaintiff no. 2 were substituted.

3. Learned Advocate representing the plaintiff submitted that the

defendant no. 1 died leaving behind his wife and daughter but due to

delay in filing the present application, the suit against the defendant

no. 1 is abated. He further submitted that due to pandemic Covid-19,

he was not in a position to visit the advocate's chamber and to give

proper instructions for taking appropriate steps after the death of the

defendant no. 1. He further submitted that the plaintiff is entitled to get

the benefits of several orders passed by this Hon'ble Court as well as

the Hon'ble Supreme Court for condoning the delay in filing the present

application.

4. Learned Advocate for the plaintiff submitted that the suit was referred

for the mediation and the plaintiff was of the opinion that the matter

would be settled in the mediation. He has also submitted that the wife

of the plaintiff was also diagnosed with cancer and the entire attention

was diverted towards his wife's health condition during the said period.

5. Learned Advocate for the defendants submitted that the application

filed by the plaintiff is liable to be dismissed as the plaintiff has

supressed the material facts and has made a false statement on oath.

He submitted that there is a delay of 644 days in filing the present

application and the plaintiff has not explained the said delay.

6. Learned Advocate for the defendants submitted that as per the case

made out by the plaintiff, the plaintiff came to know about the death of

the defendant no. 1 sometimes in the 1st week of April' 2021 whereas

the facts remain that on the date of the death of the defendant no.1, the

plaintiff was personally present at Indore for cremation and

subsequently for the immersion of the ashes in the river Narmada at

Maheshwar.

7. Learned Advocate for the defendants submitted that the plaintiff has

admitted that the plaintiff has received a copy of G.A No. 5 of 2021 in

C.S No. 208 of 2018 and the said application was allowed by this Court

by substituting the legal heirs of the plaintiff no. 2 by an order dated

24th November, 2021 but the plaintiff herein failed to take steps for

substitution of the defendant no. 1 till 27th September, 2022.

8. Admittedly, the defendant no.1 in C.S No. 212 of 2019 died on 22nd

December, 2020. It is also admitted that there are two suits pending

before this Court between the two parties. The deceased defendant no.1

in the present case was the plaintiff no. 2 in the earlier suit being C.S

No. 208 of 2018. The defendants have taken a specifically averred that

on the date of death of the defendant no. 1, the plaintiff was personally

present at Indore for the cremation and subsequently, for the

immersion of the ashes in the river Narmada at Maheshwar. The said

statement was emphatically denied by the plaintiff in his reply to the

affidavit filed by the defendants. The defendants except the averments

have not produced any supported documents with the affidavit and

thus it is not possible for this Court to come to the definite finding that

the plaintiff was present at Indore on the date of death of the defendant

no.1 and had performed the cremation and immersion of ashes at the

river Narmada.

9. Admittedly, there is a delay of 644 days in filing the present

application. The plaintiff has taken the ground of Covid pandemic-19,

health issues of his wife and the benefit of the judgment passed by the

Hon'ble Supreme Court for condoning the delay during pandemic

Covid-19 and the matter was referred to mediation. The matter was

referred for mediation by an order dated 7th January, 2020. By a report

dated 21st March, 2022, the mediator has submitted his failure report

and thus the ground of mediation will not support the contention of

the plaintiff.

10. As regard to the pandemic Covid-19, the plaintiff had appeared in the

C.S No. 208 of 2018 in which the plaintiffs of the said suit have filed an

application for substitution of the legal heirs of the plaintiff no. 2 and

the same was allowed with the consent of the plaintiff herein on 24th

November, 2021. As per the report of the mediator also the plaintiff had

appeared through virtual mode and thus the plaintiff all along

appearing in the proceedings of C.S No. 208 of 2018.

11. As regard the order passed by the Hon'ble Supreme Court for

condoning the delay during the covid period, specifically the order

dated 10th January, 2022, if this Court considers the judgment, in that

event also the plaintiff will not be entitled to get an order for

condonation of delay as the plaintiff has filed the present application

after the time period prescribed by the Hon'ble Supreme Court.

12. Considering the entire facts and circumstances, this Court finds that

the plaintiff has not properly explained the delay for filing the present

application and thus the application filed by the plaintiff is liable to be

dismissed.

13. Accordingly, G.A No. 2 of 2022 is thus dismissed.

(Krishna Rao, J.)