Substitution of heirs and legal representatives allowed when the right to proceed with the appeal survives against them.

Subhro Kamal Mukherjee, J.

1. The application for substitution consequent upon the death of the sole respondent, filed under C.A.N. 1061 of 2011, is taken up for hearing by treating the same as on day's list. The sole respondent died intestate on November 9, 2010 leaving behind him, his widow and his son as described in paragraph 3 of this application. The application is filed in time.

2. The heirs and legal representatives are major and sui juris and right to proceed with the appeal survives against them.

3. Therefore, this application is allowed. The said heirs and legal representatives of the deceased respondent are substituted in stead and in place of the deceased respondent in this appeal.

4. The office is directed to carry out the necessary amendments in the cause title of the memorandum of appeal.

5. The office is, also, directed to register the appeal, if the appeal is otherwise in form.

6. We make no order as to costs.

7. Although the matter is appearing under the heading 'for orders', by consent of Mr. Hiranmay Bhattacharya, learned advocate appearing for the appellant and Mr. Tapash Kumar Bhattacharya, learned advocate appearing for the respondents, we take up the hearing of the appeal. All formalities are dispensed with.

8. Mr. Tapash Kumar Bhattacharya, learned advocate appearing for the respondents, submits that as the appeal is taken up for hearing, he is not pressing the application for recovery of occupational charges from the appellant filed under C.A.N. 8339 of 2012.

9. As prayed for, the said application is dismissed as not pressed.

10. We make no order as to costs.

11. This is an appeal against judgment and decree dated September 28, 2007 passed by the learned Civil Judge (Senior Division), Third Court at Alipore, District - 24 Parganas (South), in Title Suit No. 66 of 2005.

12. By the impugned judgment and decree, the learned Trial Judge dismissed this suit for specific performance of contract.

13. This suit for specific performance of contract was filed on the allegation that the plaintiff and the defendant on August 16, 1994 entered into an agreement for sale of the property-in-suit and the defendant accepted Rs. 30,000/- (Rupees thirty thousand) only by cheque towards earnest money. Again, on June 13, 1997, the defendant received Rs. 30,000/- (Rupees thirty thousand) only and issued money receipt therefor.

14. The defendant contested the suit by filing a written statement. Several issues were framed. The parties led their evidence. Documents were marked.

15. Curiously, the learned Civil Judge dismissed the suit on the ground that the plaintiff did not pray for impounding the impugned agreement for sale dated August 16, 1994, which was marked as exhibit 8, although the learned Trial Judge noticed in his judgment that the exhibit 8 was a money receipt.

16. We have considered the exhibit 8. This is a simple money receipt issued by the defendant in favour of the plaintiff acknowledging the payment of Rs. 30,000/- (Rupees thirty thousand) only. The money receipt was prepared on a stamp paper of Rs. 10/- (Rupees ten) only. The defendant signed on five 0.20 (paise twenty) only revenue stamps.

17. Therefore, we understand that the agreement was oral, but the defendant acknowledged certain payments.

18. The approach of the learned Trial Judge was wrong in not considering the provisions of Order 14, Rule 2 of the Civil Procedure Code. Several issues were framed, but he picked up an objection that the plaintiff did not pray for impounding the exhibit 8 and, therefore, suit should be dismissed. He did not advert to the other issues at all.

19. Exhibit 8 was admitted on evidence without objection.

20. In the case of Javer Chand and others vs. Pukhraj Surana reported in AIR 1961 SC 1655, the Supreme Court of India holds that where a question as to the admissibility of a document is raised on the ground that it has not been stamped or has not been properly stamped, the party challenging the admissibility of the document has to b