Calcutta High Court
Soma Das vs Damayanti Majumder And Ors on 5 May, 2025
Author: Arindam Mukherjee
Bench: Arindam Mukherjee
O-14 ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
IA No. GA/1/2025
In
CS/46/2025
SOMA DAS
VERSUS
DAMAYANTI MAJUMDER AND ORS.
BEFORE:
The Hon'ble JUSTICE ARINDAM MUKHERJEE
Date: 5th May, 2025.
APPEARANCE:
Mr. Soumya Roy Choudhury, Adv.
Mr. Samriddha Sen, Adv.
Mr. Chunky Agarwal, Adv.
Ms. Sagufa Hossain, Adv.
For the plaintiff/petitioner.
Mr. Rohit Banerjee, Adv.
Mr. Saptarshi Basu, Adv.
Ms. Banani Samanta, Adv.
Mr. Manjeet Saha, Adv.
For the defendant/respondent nos. 10, 11,16,17.
Mr. D.K. Kundu, Adv.
Mr. S. Banerjee, Adv.
Mr. S. Chakraborty, Adv.
For the defendant/respondent no.12.
The Court: Affidavit of service and affidavit of compliance of formalities
under Order-XXXIX Rule 3 of the Code of Civil Procedure, 1908 (in short,
"CPC") filed in Court today by the plaintiff are taken on record.
Pursuant to notice, the defendant nos. 10, 11, 12, 16 and 17 are
represented.
It is submitted on behalf of the defendant no.4 by producing the death
certificates that defendant no.4, Subhasis Kumar Basu, has died on 30 th
January, 2021 and defendant no.5 has died on 5 th April, 2020. The
photocopies of the death certificates so produced are taken on record. It gives
rise to an automatic question whether the suit can continue when admittedly it
has been filed against two defendants who were dead much prior to the
institution of the suit.
The law as it stood prior to the judgment reported in (2017) 9 SCC 700
[Pankajbhai Rameshbhai Zalavadiya-Versus-Jethabhai Kalabhai
Zalavadiya (Deceased) & Others] was that the suit against the dead persons
cannot be maintained.
The judgment in Zalavadiya (supra) has taken note of all previous
judgments and the Supreme Court has come to a finding that in case where
the defendant is found dead prior to the institution of the suit then one of the
legal representative of such defendant can be brought on record under the
provisions of Order-X Rule 2 of the Code of Civil Procedure (in short, "CPC"),
1908 as provisions of Order XXII Rule 4 of CPC is not applicable in such a
case. In the instant case apart from the two defendants i.e. nos. 4 & 5 who are
dead prior to the institution of the suit and the other defendants appear to be
alive at the time when the plaintiff's cause of action as stated in the plaint
accrued i.e. on 12th February, 2025.
So far as the addition of one of the legal representatives of either the
defendant no.4 or defendant no.5 are concerned, the law of limitation is likely
to be attracted as per the defendants.
The defendants say that Zalavadiya (supra) has considered the judgment
reported in AIR 1967 SCC 278 (Ramprasad Dagduram-Versus-Vijay Kumar
Motilal Mirakhanwala & Others) wherein the provisions of Limitation Act
was found applicable in case of impleading the legal heirs of the deceased if the
death of the defendant was found to be more than three years prior to the
institution of the suit, as in the instant case. The suit, however, does not abate
as contended against the other defendants since the plaintiff had stated about
a cause of action said to have arisen in her favour on 12 th February, 2025
when the other defendants were alive.
Let this suit be directed to go out of the list with liberty to mention.
The plaintiff is directed to take appropriate steps.
The interim order which was passed on 24th April, 2025 as corrected on
28th April, 2025 shall continue against all the defendants save and except the
defendant nos. 4 and 5 who are found to be dead prior to the institution of the
suit.
(ARINDAM MUKHERJEE, J.)
snn.
