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HIGH COURT OF CALCUTTA
P. C. MALLICK, J.
Provat Chandra Coomar
Versus
Rabindra Nath Coomar
Suit No.344 of 1955
Decided On : 22-09-1959
PARTITION SUIT - ABATEMENT - SETTING ASIDE - INHERENT POWER OF COURT - SUBSTITUTION OF LEGAL REPRESENTATIVES - ORDER 1 RULE 10 CPC - WITHDRAWAL OF SUIT - TRANSFER OF PLAINTIFF TO DEFENDANT - COSTS.
Fact of the Case:
In a partition suit, one of the defendants, Charubala, died during the pendency of the suit. Her son, Rabindra, who was also a defendant, died intestate a week later. No substitution of the heirs of either Charubala or Rabindra was made within the 90 days provided by law, and the suit abated as against them. The plaintiff applied for withdrawal of the suit and discharge of the Receiver, while the legal representatives of Rabindra applied for setting aside the abatement and substitution.
Finding of the Court:
The court held that the legal representatives of a deceased defendant cannot apply to set aside an abatement under Order 22 Rule 9 of the Code of Civil Procedure (CPC), as the right to apply is restricted to the plaintiff or their legal representatives. However, the court has inherent power to set aside an abatement in order to save the suit and prevent unnecessary costs and delays.
Issues: 1. Whether the legal representatives of a deceased defendant can apply to set aside an abatement under Order 22 Rule 9 CPC? 2. Whether the court has inherent power to set aside an abatement in a partition suit? 3. Whether the plaintiff can withdraw a partition suit after abatement?
Ratio Decidendi: 1. The court held that the legal representatives of a deceased defendant cannot apply to set aside an abatement under Order 22 Rule 9 CPC, as the right to apply is restricted to the plaintiff or their legal representatives. This is because the language of Order 22 Rule 9 is clear and unambiguous, and there is no provision in the CPC that gives defendants the right to apply to set aside an abatement. 2. The court held that the court has inherent power to set aside an abatement in a partition suit in order to save the suit and prevent unnecessary costs and delays. This is because partition suits are unique in that all parties, including the defendants, are in the position of plaintiffs, and an abatement would prejudice all parties involved. 3. The court held that the plaintiff cannot withdraw a partition suit after abatement, as it would be unfair to the other parties who have an interest in the partition of the property.
Final Decision: The court set aside the abatement suo motu in exercise of its inherent power and added the legal representatives of Rabindra as parties in exercise of powers under Order 1 Rule 10 CPC. The court also transferred the plaintiff from the category of plaintiff to that of the defendant and made the heirs of Rabindra the plaintiffs. The court dismissed the plaintiff's application for withdrawal of the suit.
2. The suit was instituted by the plaintiff for partition. The joint family estate consists of various properties including extensive paddy lands in the village of Hatni in the District of Hooghly. After the institution of the suit, the Official Receiver was appointed Receiver of about 4000 maunds of paddy amongst other properties. Except Charubala all the other defendants have entered appearance and filed their respective written statements. The suit, I understand, is now ready for hearing and is appearing in the Prospective List.
3. On April 2, 1959 Charubala died. Charubala is the mother of Rabindra and Ratindra the defendants Nos. 1 and 2. She has also several daughters. It is alleged that Charubala left a will whereby she appointed Rabindra as her executor. The will, however, has not been probated as yet. About a week after the death of Charubala, Rabindra died intestate leaving him surviving his widow and several sons and daughters. No substitution of the heirs of either Charubala or of Rabindra was made within the 90 days provided by law and in July the suit abated as against Charubala and Rabindra.
4. On July 20, 1959 the plaintiff took out a notice of motion asking leave to withdraw the suit and praying that the Official Receiver be discharged from further acting as Receiver. This application is being supported by the defendants Nos. 4 to 12 and is being opposed by the defendant No. 2, the other defendants, namely, Rabindra and Charubala having already died. Thereupon the heirs and legal representatives of the defendant Rabindra took out a summons asking that the abatement of the suit be set aside, that the death of the defendants Charubala and Rabindra be recorded and that the applicants be substituted as heirs and legal representatives of Rabindra. There are the two applications now before me and this judgment disposes of both the applications.
5. I will deal first with the application for setting aside the abatement and for substitution. It is to be noted that the application for substitution and setting aside the abatement is opposed by the plaintiff and the defendant Nos. 4 to 12. The argument in opposition to the application was made by Mr. B.C. Dutt appearing on behalf of the defendants Nos. 4 to 12. Plaintiff now appearing in person supported Mr. Dutt. Mr M.N. Banerjee appeared on behalf of the applicants in support of the application. Mrs. Roy appearing for Rabindra supported Mr. Banerjee. This is the grouping of the parties before me.
6. Mr. B.C. Dutt in opposing the application submitted that the application is mis-conceived and in law must be dismissed on the ground that an application to set aside an abatement cannot be maintained by the legal representative of the deceased defendant. Order 22 Rule 9 only enables the plaintiff or the heirs and legal representatives of the plaintiff or the assignee of the plaintiff to make an application to set aside an abatement. Before abatement the legal representative of the deceased plaintiff or defendant is entitled to make an application for substitution under O. 22 R. 3 or O. 22 R. 4. The language used being "on an application made in that behalf." The language is very wide in its scope to cover all. The language of O. 22 R. 9 however makes it clear that an application to set aside an abatement cannot be made by anybody except the plaintiff or the legal representative or assignee of the plaintiff. Right to apply to set aside an abatement being thus restricted, the present application by the legal representative of the deceased defendant fails on the ground of maintainability. Mr. Banerjee contended that in a partition suit even the defendant is in the position of a plainiiff and as such the l
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