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High Court Of Calcutta
Harish Tandan, J.
Jangli Bitkel - Appellants
Vs
Gita Das - Respondents
C.O. No. 1995 of 2009
Decided on: July 27, 2011
SUBSTITUTION OF PARTIES - WEST BENGAL PREMISES TENANCY ACT, 1956 - ORDER 1 RULE 10(2) AND ORDER 22 RULE 3 OF THE CODE OF CIVIL PROCEDURE - LIMITATION ACT, ARTICLE 120 - SUMMARY: The court held that the trial court did not err in rejecting the petitioners' application for addition of parties, as the petitioners failed to file an application for substitution within the statutory period prescribed under Article 120 of the Limitation Act. The court clarified that Order 22 Rule 3 of the Code of Civil Procedure allows for the legal representative of a deceased plaintiff to be made a party upon an application by any of the parties to the suit, and that the legal representatives can be brought on record either as co-plaintiffs or co-defendants. The court further held that the petitioners' contention that the legal representatives had to be brought on record as co-plaintiffs and not as co-defendants unless transposition was ordered was without merit.
Fact of the Case:
The petitioners, along with one Subhas Bitkel, filed an eviction suit against the Opposite Party under the West Bengal Premises Tenancy Act, 1956. During the pendency of the suit, Subhas Bitkel died intestate, leaving behind his widow, two major sons, one minor son, and a minor daughter as his heirs and legal representatives. The petitioners filed an application under Order 1 Rule 10(2) of the Code of Civil Procedure seeking to add the heirs of the deceased plaintiff as party defendants in the suit. The trial court rejected the application.
Finding of the Court:
The court held that the trial court did not commit any illegality in rejecting the petitioners' application. The court clarified that Order 22 Rule 3 of the Code of Civil Procedure allows for the legal representative of a deceased plaintiff to be made a party upon an application by any of the parties to the suit, and that the legal representatives can be brought on record either as co-plaintiffs or co-defendants.
Issues: Whether the trial court erred in rejecting the petitioners' application for addition of parties.
Ratio Decidendi: The court held that the petitioners failed to file an application for substitution within the statutory period prescribed under Article 120 of the Limitation Act. The court further held that the petitioners' contention that the legal representatives had to be brought on record as co-plaintiffs and not as co-defendants unless transposition was ordered was without merit.
Final Decision: The court dismissed the revisional application.
HARISH TANDON, J.
1. AT the very outset it should be recorded that no one appears on behalf of the Opposite Party when the matter was taken up for hearing. The revisional application was directed to be proceeded ex parte. This revisional application is directed against Order No. 99 dated 19-03- 2009 passed by the learned Chief Judge, Small Causes Court, Calcutta in Ejectment Suit No. 2930 of 2000 by which an application for addition of parties was rejected.
2. THE petitioners along with one Subhas Bitkel, since deceased, filed eviction suit against the Opposite Party under the West Bengal Premises Tenancy Act, 1956. THE Opposite Party is contesting the said suit by filing the written statement. During the pendency of the suit the said Subhas Bitkel, since deceased, plaintiff No. 2, died intestate on 10.11.2008 leaving behind his widow Smt. Saraswati Bitkel, two major sons i.e. Binod Bitkel and Ranjit Bitkel, one minor son i.e. Sankar Bitkel and a minor daughter Bhagyasree Bitkel as his heirs and legal representatives.
3. THE petitioners thereafter filed an application under Order 1 Rule 10 (2) of the Code of Civil Procedure seeking for addition of the heirs of the deceased plaintiff No. 2 as party defendant in the said suit.
4. THE said application is rejected by the Trial Court by the impugned order. Mr. Debojyoti Basu, learned Advocate appearing for the petitioners submits that the Trial Court committed error in rejecting an application for addition inasmuch as substitution application can also be filed by the heirs of the deceased. It is further submitted that the remaining plaintiffs, petitioners herein, does not want the heirs of the deceased plaintiff to be added as co-plaintiffs but intended them to be added as a party defendant which can only be done under Order 1 Rule 10 (2) of the Code of Civil Procedure. Having heard the learned Advocate for the petitioners, there is no doubt that the petitioners along with one Subhas Bitkel instituted eviction suit against the Opposite Party. It is also not in dispute that the said Subhas Bitkel died on 10.11.2008 during the pendency of the said suit. Admittedly, no application for substitution was filed by the remaining plaintiffs within the statutory period as enshrined Article 120 of the Limitation Act.
5. BEFORE dealing with the submissions made by the petitioners, it would be profitable to quote Order 22 Rule 3 of the Code of Civil Procedure which reads thus :-
"R. 3. Procedure in case of death of one of several plaintiffs or of sole plaintiff. - (1) where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the court, on application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. (2) where within the time limited by law no application is made under subrule (1), the suit shall abate so far as the deceased plaintiff is concerned, and on the application of the defendant, the court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff."
On bare perusal of the said provision if one of the plaintiffs dies and right to sue does not survive with the remaining plaintiffs the court "on an application in that behalf", shall cause the legal representative of the deceased plaintiff to be made party. If an application is not taken out within the period prescribed by law, the suit shall abate so far as the deceased plaintiff is concerned. Article 120 of the Limitation Act prescribed a period within which an application for substitution under Order 22 Rule 3 should be taken out. There is no stipulation within the said provision that an application is required to be made by the legal representatives and cannot be taken out by the remaining plaintiffs or the defendant / de
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