Chandrakanta Mitra vs Bishnu Kumar Aikat
2021 Latest Caselaw 1494 Jhar

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      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                 W.P.(C) No. 3264 of 2019

Chandrakanta Mitra                         ...     ...      Petitioner
                                Versus
1. Bishnu Kumar Aikat
2. Dipannita Chaturvedi                    ...     ...      Respondents
CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR
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For the Petitioner : Mr. Rahul Kumar Gupta, Advocate For the Respondent No. 1 : Mr. Rajiv Kumar Sinha, Advocate For the Respondent No. 2 : Mr. Amar Kumar Sinha, Advocate Mr. K.K. Ambastha, Advocate

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Order No. 10 Dated: 24.03.2021

The present writ petition is taken up today through Video conferencing.

The present writ petition has been filed for quashing the order dated 03.04.2019 (Annexure-4 to the writ petition) passed by the Sub-Judge-II-cum-L.A. Judge, Ranchi in Original (Partition) Suit no. 258/2009, whereby the petition dated 01.12.2015 filed by the plaintiffs (the petitioner and the proforma respondent - Dipannita Chaturvedi) under Order XXII, Rule 2 read with Section 151 CPC has been rejected and the suit has been held to be abated against the defendant No.1 (now deceased). It has also been prayed that the petition dated 01.12.2015 filed by the petitioner may be allowed and the name of the defendant no. 1 may be ordered to be deleted from the array of the parties in Original (Partition) Suit No. 258/2009. Further prayer has been made for issuance of direction to the court below to decide Original (Partition) Suit No. 258/2009 within a reasonable timeframe.

2. The factual background of the case as stated in the writ petition is that the petitioner and the proforma respondent filed Original (Partition) Suit No. 258/2009 seeking partition of their share in the ancestral property. The defendant nos. 1 and 2 appeared and filed their joint written statement in reply to the plaint filed by plaintiffs (the petitioner and the proforma respondent herein). During the pendency of the Original (Partition) Suit No. 258/2009, the defendant no. 1 namely, Smt. Ira Aikat [mother of both plaintiffs and

defendant no. 2 in the Original (Partition) Suit No. 258/2009] died on 21.12.2014 leaving behind only son Bishnu Aikat- the defendant No. 2 and two daughters namely, Dipannita Chaturvedi and Chandrakanta Mitra, who are the plaintiff nos. 1 and 2 respectively in the Original (Partition) Suit No. 258/2009. A petition was filed under Order XXII, Rule 2 read with Section 151 CPC by the plaintiffs for deletion of the name of the deceased defendant no. 1 namely, Ira Aikat from the cause title of the plaint. However, the said application of the plaintiffs was dismissed by the court below vide impugned order dated 03.04.2019. Hence, the present writ petition.

3. The learned counsel for the petitioner submits that the suit was filed for the partition of the ancestral property and upon death of original defendant no. 1, her share in the suit property devolved upon the plaintiffs as well as the defendant no. 2/respondent no. 1, who were the only class-1 heirs of the deceased defendant and were already parties to the suit and, therefore, the right to sue does not come to an end and is still subsisting. However, the court below dismissed the application of the petitioner vide order dated 03.04.2019, whereby the petition filed by the plaintiff dated 01.12.2015 has been rejected. The learned counsel for the petitioner submits that the court below has committed a grave illegality in rejecting the application of the petitioner filed under Order XXII, Rule 2 CPC without appreciating the fact that all the heirs of the deceased defendant no. 1 namely, Ira Aikat, were already parties to the suit. Hence, there was no deceased defendant and consequently, there was no such situation of abatement of the suit. As such, the impugned order dated 03.04.2019 is not tenable in law and is liable to be quashed/set aside. It is further submitted that the suit was filed in the year 2009 and even after 10 years, the matter is being lingered by the defendant no. 2 for one reason or the other. Since both the plaintiffs in the Original (Partition) Suit No. 258/2009 are old aged ladies and are facing problems due to long pendency of this litigation, the court below may be ordered to dispose of the suit within a reasonable timeframe.

4. Notices were issued upon the respondents. The

respondent no. 2 is the proforma respondent and when the notice could not be served due to her house having been found closed, no further notice was required to be issued to her. The respondent no. 1 has been represented through his counsel, however, in spite of several opportunities granted, no counter affidavit has been filed on his behalf. Vide order dated 14.12.2020, the respondent no. 1 was granted last chance for filing counter affidavit. A prayer was again made by the learned counsel for the respondent no. 1 on 27.01.2021 seeking time for filing counter affidavit, which was allowed and the case was fixed for 25.02.2021 making it clear that if no counter affidavit was filed by the next date fixed, the court would proceed to hear and dispose of the case on the basis of the materials available on record. No counter affidavit has, however, been filed on behalf of the respondent no. 1 as yet.

5. Heard the learned counsel for the petitioner and perused the materials available on record including the impugned order. The thrust of argument of the learned counsel for the petitioner is that the heirs of the deceased defendant no. 1 were already parties in the suit and as such, her name was required to be deleted from the array of the parties, however, the learned court below failed to appreciate the provisions of Order XXII Rule 2 CPC and rejected the petitioner's application on the ground that the suit got automatically abated against the defendant no. 1 after lapse of 90 days of limitation period for filing of an application to substitute the heirs of the deceased in the array of the parties.

6. I have perused the impugned order dated 03.04.2019 passed by the court below, the operative part of which is reproduced hereinbelow:

Heard and perused the case record. On perusal of record, it appears that defendant no.-1 died on 21.12.2014 and the aforesaid petition was filed on 01.12.2015 without any petition to condone the delay. Moreover, as per law, suit gets automatically abated after lapse of limitation period i.e. 90 days as per Order XXII Rule 4(3) of CPC and the reason for filing this petition given by plaintiff is quite absurd because it cannot be believed or accepted that being daughters of defendant no.-1, they will not have knowledge

about the death of their mother. Accordingly, the said petition dated 01.12.2015 is hereby rejected and the suit is abated against defendant no. 1.

7. Thus, it appears that the court below while rejecting the application of the plaintiffs took into consideration the period of limitation as provided under Order XXII Rule 4(3) of CPC for impleading the legal representatives of the deceased defendant as parties observing inter alia that it was not believable that the plaintiffs being the daughters had no knowledge of the death of their mother.

8. To appreciate the contention of the learned counsel for the petitioner, I have gone through the provisions of Order XXII Rule 2 and Rule 4 of CPC, which are reproduced hereinbelow:

2. Procedure where one of several plaintiffs or defendants dies and right to sue survives. - Where there are more plaintiffs or defendants than one, and any of them dies, and where the right to sue survives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the Court shall cause an entry to the effect to be made on the record, and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants.

4. Procedure in case of death of one of several defendants or of sole defendant. -

(1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.

(2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant. (3) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant. (4) The Court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took

place.

(5) Where-

(a) the plaintiff was ignorant of the death of a defendant, and could not, for that reason, make an application for the substitution of the legal representative of the defendant under this rule within the period specified in the Limitation Act, 1963 (36 of 1963) and the suit has, in consequence, abated, and

(b) the plaintiff applies after the expiry of the period specified therefor in the Limitation Act, 1963 (36 of 1963), for setting aside the abatement and also for the admission of that application under section 5 of that Act on the ground that he had, by reason of such ignorance, sufficient cause for not making the application within the period specified in the said Act, the Court shall, in considering the application under the said section 5, have due regard to the fact of such ignorance, if proved.

9. Rule 2 provides the procedure where one of several plaintiffs or defendants dies and the right to sue survives. It speaks that where there are more plaintiffs or defendants than one and if any of them dies and the right to sue survives upon the remaining plaintiff/plaintiffs or against the surviving defendant/defendants alone, then in such a situation, the court shall cause an entry to that effect and the suit shall proceed at the instance of the surviving plaintiffs or plaintiffs or against the surviving defendant or defendants. There is no time limit prescribed for making entry of the death of the deceased plaintiff or defendant in record. Even no formal application is required for that purpose and the court on its own motion can also delete the deceased defendant from the array of the parties. Whereas Rule 4 provides the procedure to be followed in case of death of one of several defendants or of sole defendant where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, then in such case, on an application made in that behalf, the legal representative of the deceased defendant is to be made a party and the court shall proceed with the suit. Sub-rule 4 provides that when within the time limit, no application is made under sub-rule 1, the suit shall abate against the deceased defendant.

10. I have perused the Full Bench judgment of the Patna High

Court in the case of "Musammat Hifsa Khatoon & Ors. Vs. Mohammad Salimar Rahman & Ors." reported in AIR 1959 Pat 254 (FB) wherein it has been held as under:

36. On a careful consideration of the authorities referred to above, my concluded opinion is that where all the heirs or legal representatives of the deceased are already on the record in any capacity, it is not necessary to make an application for their substitution in the place of the deceased and such a case is governed by R.2 of O.22 and not R.3 and 4 of that Order. The Bench decision of this court in AIR 1931 Pat 164, referred to above must, therefore, be held to have been incorrectly decided and is overruled.

11. In the present case, it appears that the plaintiffs were the daughters and the defendant no. 2 was the son of the deceased defendant no. 1 and they are the only legal representatives of the deceased and as such, in view of Rule 2, the court was only required to record the death of the deceased defendant and to proceed with the suit against the surviving plaintiffs and defendant. I am of the view that the court below has applied wrong provision for rejecting the plaintiffs' application dated 01.12.2015.

12. Under the aforesaid facts and circumstance, the order dated 03.04.2019 passed by the learned Sub-Judge-II-cum-L.A Judge, Ranchi in Original (Partition) Suit No. 258/2009 is hereby quashed and set-aside. The court below is directed to delete the name of the deceased defendant no. 1 from the array of the parties and to proceed with the remaining plaintiffs and defendants in the suit to dispose of the same in accordance with law expeditiously.

13. The writ petition is accordingly allowed.

(Rajesh Shankar, J.) Manish/AFR