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IN THE HIGH COURT OF CALCUTTA
Ashis Kumar Chakraborty, J.
Sri Lalit Mohan Ghosh - Appellant
Versus
Lala Netai Chandra Babu @ Basu - Respondents
S.A. 148 of 2002 with C.A.N. 1238 of 2014 with C.A.N. 4204 of 2014
Decided On : 10-07-2015
Important Points
Subject
Civil Law - Abatement of Appeal
Act Referred
LIMITATION ACT : S.5
PARTITION ACT : S.4
Headnote
ABATEMENT OF APPEAL - SECOND APPEAL - PARTITION SUIT - PREEMPTION - SCOPE OF RULE 10A ORDER 22 OF THE CODE OF CIVIL PROCEDURE, 1908 - INTERPRETATION OF SUFFICIENT CAUSE UNDER SUB-RULE (5) OF RULE (4) OF ORDER 22 OF THE CODE OF CIVIL PROCEDURE, 1908 - EFFECT OF ABATEMENT OF APPEAL AS AGAINST ONE OF THE DECEASED RESPONDENTS - APPLICABILITY OF SECTION 4 OF THE PARTITION ACT, 1893 - FINALITY OF JUDGMENT AND DECREE OF THE LOWER APPELLATE COURT.
Fact of the Case:
In a partition suit, the appellant, a stranger purchaser of a portion of the suit property, claimed partition against the respondent nos. 1, 2, 4, and 5, who were the co-owners of the suit property. The defendant respondent no. 1 filed an application claiming preemption against both the stranger purchasers. The trial court rejected the appellant's claim for partition and allowed the prayer of the defendant respondent no. 1 for preemption against both the appellant and the defendant respondent no. 3. The appellant filed an appeal against the trial court's judgment and decree. The first appellate court set aside the trial court's decision and remanded the partition suit to the trial court. On appeal by the defendant respondent no. 1, the High Court set aside the decision of the first appellate court and directed it to decide the appeal on merit and ascertain the shares of the respective parties to the partition suit. The first appellate court affirmed the trial court's judgment that the suit property is the dwelling house of the family of the respondent nos. 1, 2, 4, and 5 and also the decree of the trial court for preemption in favor of the defendant respondent no. 1. The first appellate court declared the shares of the respective parties to the suit.
Finding of the Court:
1. The provisions of Rule 10A Order 22 of the Code of Civil Procedure, 1908 are not mandatory and do not impose any obligation on the advocate of the deceased party to inform the Court of the particulars of the legal representatives of the deceased party. 2. The appellant was aware of the dates of death of the respondent nos. 3 and 5 and in spite of such knowledge, if he did not make any enquiry about the particulars of the legal representatives of the said deceased respondent nos. 3 and 5, he has to blame himself and cannot maintain this application under sub-rule (5) of Rule 4 Order 22 of the Code for setting aside the abatement of the appeal against the said deceased respondents. 3. The appeal against the defendant respondent no. 3 has abated, the present appeal cannot be proceeded with any further and therefore, the entire appeal should be dismissed. 4. The judgment and decree of the first appellate court has become binding upon the legal representatives of the deceased defendant respondent no. 3.
Issues: 1. Whether the provisions of Rule 10A Order 22 of the Code of Civil Procedure, 1908 are mandatory? 2. Whether the appellant had sufficient cause for not making the application for substitution of the legal representatives of the deceased respondent within the statutory period of limitation? 3. Whether the appeal against the defendant respondent no. 3 has abated, the present appeal cannot be proceeded with any further and therefore, the entire appeal should be dismissed? 4. Whether the judgment and decree of the first appellate court has become binding upon the legal representatives of the deceased defendant respondent no. 3?
Ratio Decidendi: 1. The provisions of Rule 10A Order 22 of the Code of Civil Procedure, 1908 are not mandatory and do not impose any obligation on the advocate of the deceased party to inform the Court of the particulars of the legal representatives of the deceased party. 2. The appellant was aware of the dates of death of the respondent nos. 3 and 5 and in spite of such knowledge, if he did not make any enquiry about the particulars of the legal representatives of the said deceased respondent nos. 3 and 5, he has to blame himself and cannot maintain this application under sub-rule (5) of Rule 4 Order 22 of the Code for setting aside the abatement of the appeal against the said deceased respondents. 3. The appeal against the defendant respondent no. 3 has abated, the present appeal cannot be proceeded with any further and therefore, the entire appeal should be dismissed. 4. The judgment and decree of the first appellate court has become binding upon the legal representatives of the deceased defendant respondent no. 3.
Final Decision: The application of the appellant in CAN 4204 of 2014 is dismissed. The second appeal being S.A. 148 of 2002 is dismissed. No further order is required to be passed in the application of respondent no. 1 being CAN 1238 of 2014.
For the Appellant :S.P. Roy Chowdhury, Senior Advocate, Sanghamitra Nandy, Debjit Mukherjee, Advocate and Susmita Chatterjee, Advocates
For the Respondents:Bhaskar Ghose, Senior Advocate and Debarati Sen (Bose), Advocate.
Ashis Kumar Chakraborty, J.
These applications have been filed in the second appeal admitted by the Division Bench on July 12, 2002. The first application, CAN 1238 of 2014, is at the instance of the respondent no. 1, the defendant no. 1 in the partition suit, for recording the abatement of second appeal on the ground that four respondents have died and their respective legal representatives have not be substituted in the appeal. The second application, CAN 4204 of 2014 has been filed by the appellant praying for setting aside of the abatement of the appeal against the deceased respondents after condoning the delay and a direction upon the surviving sole respondent to furnish the names and addresses of the legal representatives of the respective deceased respondents.
2. The appellant, a stranger purchaser of a portion the suit property, (jointly owned by the ancestors respondent nos. 1, 2, 4 and 5), filed the suit claiming partition of the suit property. The respondent no. 3, since deceased, also a stranger purchaser of a portion of the suit property was the defendant no. 3 in the partition suit. In the partition suit, the defendant respondent no. 1 filed an application claiming a decree for pre-emption against of both the stranger purchasers. The learned trial Court rejected the claim of the plaintiff appellant for partition and allowed the prayer of the defendant respondent no. 1 for preemption against both the plaintiff appellant and the defendant respondent no. 3, since deceased. However, the learned trial Court did not declare the shares of respective shares of the partition suit. The plaintiff appellant filed an appeal against the judgment and decree of the learned trial Court before the learned first appellate Court. By an order dated September 10, 1990 the learned first appellate Court set aside the judgment and decree passed by the learned trial Court and remanded the partition suit to the learned trial Court. In an appeal filed by the defendant respondent no. 1, this Court set aside the said decision of the learned first appellate Court and directed the learned first appellate Court to decide the appeal on merit and ascertain the shares of the respective parties to the partition suit. By the impugned judgment dated December 20, 2001 the learned first appellate Court affirmed the judgment of the learned trial Court that the suit property is the dwelling house of the family of the respondent nos. 1, 2, 4 and 5 and as also the decree of the learned trial Court for pre-emption in favour of the defendant respondent no. 1. The learned first appellate Court declared the shares of the respective parties to the suit.
3. From the cause title of the memorandum of appeal it appears that the addresses of the appellant and the respondent nos. 3 and 5, since deceased are the same, that is, village-Patna, P.S. Polba, District-Hooghly.
4. In paragraph 4 of the application of the respondent no. 1, that is, CAN 1238 of 2014, it has been stated that the appellant is running his shop in a portion of the suit property, the respondent no. 5, since deceased was also residing at the suit premises and she died at the suit premises. The respondent no. 1 further stated that the respondent no. 3, since deceased also resided just opposite to the house of the appellant.
5. Mr. S.P. Roy Chowdhury, learned senior counsel appearing for the appellant in support of application for setting aside of abatement of the appeal placed paragraph of the appellants' application submitted that the plaintiff appellant was not aware of the death of any of the respondent nos. 2 to 5. It was only when the second appeal was taken up for hearing by a learned Single Judge of this Court by a letter dated March 22, 2013, the learned Advocate of the respondent no. 1 informed the Advocate of the appellant that during the pendency of the appeal the respondent nos. 2, 3, 4 and 5 died on March 5, 2012, April 18, 2012, in December 1989 and May 04, 2008. He further submitte
