Gauhati High Court
Aftab Uddin Barbhuiya vs Fazil Uddin Laskar And 6 Ors on 8 February, 2023
Page No.# 1/5
GAHC010160322022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP(IO)/188/2022
AFTAB UDDIN BARBHUIYA
S/O. LT. JAMIR UDDIN BARBHUIYA, R/O. KAZIDAHAR PART-I, P.S. SONAI,
PORGANA BONRAJ, DIST. CACHAR, ASSAM.
VERSUS
FAZIL UDDIN LASKAR AND 6 ORS
S/O. LT. BASARAT ALI LASKAR,
2:AMURUN NESSA LASKAR
W/O. NURUL ISLAM
3:OJIB UDDIN LASKAR
S/O. LT. BASARAT ALI
4:NOOR UDDIN
S/O. LT. TABARAK ALI
5:BABUR UDDIN
S/O. LT. HARIS ALI
6:MONAI MIA
S/O. LT. HARIS ALI
7:ABDUL SALAM @ PUTUL UDDIN
S/O. LT. HARIS ALI
Page No.# 2/5
ALL ARE R/O. KAZIDAHAR PART-I
P.S. SONAI
PORGANA BONRAJ
DIST. CACHAR
ASSAM
Advocate for the Petitioner : MS. R CHOUDHURY
Advocate for the Respondent : MS. S PHUKAN (R1 TO R7)
BEFORE
HONOURABLE MR. JUSTICE AJIT BORTHAKUR
ORDER
08.02.2023
Heard Ms. R. Choudhury, learned counsel for the petitioner/defendant as well as
Mr. S.D. Purkayastha, learned counsel appearing for the respondents/plaintiff.
2. This petition under Article 227 of the Constitution of India read with Section
151 of the Code of Civil Procedure (for short 'CPC') has been filed for setting aside the
impugned order, dated 07.06.2022, passed by the learned Munsiff No. 2. Cachar,
Silchar in T.S. No.150/2015 instituted for declaration that the pathway mentioned in
the Schedule-I of the plaint is the only pathway of the respondents/plaintiff for ingress
and egress.
3. The petitioner/defendant's case precisely is that the plaintiff/respondents have
filed the aforesaid declaratory suit, inter-alia, for removal of blockade/obstruction,
fencing etc. from the disputed pathway described in Schedule-II of the plaint which is
part of the entire pathway described in Schedule-I to ensure their free passage and
further, permanent injunction restraining the petitioner/defendant etc. from recurring
such blockade or obstructions over it.
4. In course of the aforesaid proceeding, the plaintiff No. 3, namely Kewarun
Page No.# 3/5
Nessa, wife of Siraj Uddin Laskar died. Therefore, the plaintiffs by a petition under
Order 6 Rule 17 of the CPC sought for amendment of the plaint in view of death of
plaintiff No. 3 and as her legal heirs expressed unwillingness to get themselves
impleaded in the suit in her place, prayed to delete the name of plaintiff No. 3 from
the plaint by way of amendment of the plaint. However, learned Munsiff No. 2, Cachar
at Silchar by order, dated 01.04.2019 rejected the aforesaid petition on the grounds
that there was no document in support of the claim of death of the plaintiff No. 3 and
such amendment in the suit might change the nature and feature of the suit.
5. Thereafter, the defendant petitioner herein, referring to the aforesaid order of
rejection of the petition for amendment, took the plea that the suit abated as a whole
as cause of action of the suit was in severable and evidently, a dead person was
impleaded with forgery and by practicing fraud. After hearing the learned counsel of
both the sides and consideration of the materials on record rejected the aforesaid
petition and fixed the suit for cross-examination of P.W. 1/further P.Ws.
6. The aforesaid order of rejection of the petition reads as hereunder extracted
(relevant portion)-
"Perusal of C/R reveals that in the present case there are 8 nos. of plaintiff out
of which plaintiff no. 3, Kewarun Nessa expired. There are other 7 nos. of plaintiffs.
Right to sue survives on the said plaintiff, as it is a declaratory suit regarding plaintiffs
right over a pathway. Hence, considering the overall circumstances of the case and
considering the matter in its entirety this court comes to the reasonable finding that as
right to sue survives upon the other plaintiffs, hence no question arises regarding the
abatement of the suit as a whole. Accordingly, petition no. 148/2 is rejected.
Fix 30/07/22 for cross of PW 1/further PWs."
7. Ms. R. Choudhury, learned counsel for the petitioner, submits that there are 8
number of plaintiffs in the suit and the plaintiffs after 8 months from filing of the
written statement, dated 21.03.2016 specifically pointing out that the plaintiff No. 3
died before the institution of the suit, filed the aforesaid petition under Order 6 Rule
Page No.# 4/5
17 of the CPC on 07.11.2016 contending that the legal heirs are not necessary to be
impleaded in the suit in her place and as such, by virtue of rejection of the petition
itself rendered the whole proceeding of the suit against dead person is a nullity and
failure to substitute her legal heirs abated the suit. In this context, Ms. Choudhury has
relied on the ratio of the judgment rendered by the Hon'ble Supreme Court in Gurnam
Singh (Dead) through legal representatives and ors. Vs. Gurbachan Kaur (Dead) by
legal representatives, reported in (2017) 13 SCC 414.
8. Per contra, Mr. S.D. Purkayastha, learned counsel appearing for the
respondents/plaintiff, submits that the suit would not abate in view of the death of the
plaintiff No. 3 as the right to sue survived on the other plaintiffs in the said suit where
declaration has been sought on the disputed pathway described in Schedule-II of the
plaint and when the rights of either of the parties are not prejudiced. Mr. Purkayastha
relied on the judgment of the Apex Court rendered in Sardar Amarjit Singh Kalra
(Dead) by LRs. And Others Vs. Pramod Gupta (Smt) (Dead) by LRs. and Others,
reported in (2003) 3 SCC 272.
9. It may be pointed out that generally, a necessary party is one in the absence of
whom relief claimed in the suit cannot be granted. In other words, it means that for
the grant of relief claimed in a suit, a person who ought to have joined must be
added. The plaintiff respondents herein pleaded that they and their predecessors-in-
interest were/are using the disputed pathway for ingress and egress leading to the
PWD road and as such, by instituting the suit they are seeking a mere declaration of
their and other persons' right in common to continue to use the pathway as such. It
may be mentioned that a declaratory decree is one which only declares some existing
rights in favour of the plaintiff(s) and as such, not executable in nature per se devoid
of any declaration as to the right, title and interest over the suit pathway. Therefore, in
the aforesaid backdrop of facts stated in pleadings and circumstances, the right to sue
survived on the other plaintiffs in the suit and as such, for failure to bring on record
Page No.# 5/5
the legal heirs of the deceased plaintiff No. 3 out of the total 8 plaintiffs would not
certainly abate the whole suit. However, in such circumstances, striking off her
name as plaintiff No. 3 is necessary as prayed for by the plaintiff respondents.
10. For the reasons, set forth above and after due consideration of the above
citations, this Court is of the opinion that the learned trial Court has not committed
any illegality or irregularity while passing the impugned order and accordingly, the
petition stands dismissed. No cost.
This disposes of the petition.
JUDGE
Comparing Assistant
