JUDGMENT :

AJOY KUMAR MUKHERJEE, J.

1. This application under Article 227 of the Constitution of India has been preferred against order dated 13.11.2019 and order dated 5.6.2018 passed by the learned Civil Judge, Senior Division, Small Causes Court, Sealdah in Title Suit no. 23 of 2016.

2. The petitioners contended that the opposite party/plaintiff instituted aforesaid suit praying inter-alia for a decree of declaration and recovery of compensation valued at Rs. 3,75,000/- and recovery of damages for damaging the machineries and glass-wares valued at Rs. 1,41,430/-and recovery of interest valued at Rs. 2,00,000/-. The husband of the petitioner no. 1 as defendant no. 8 entered appearance and contested the said suit by filing written statement denying and disputing the allegations and contentions made in the plaint.

3. The plaintiff/opposite party herein alleged in the plaint that the defendant nos. 1 to 7 were owners of premises no. 7, U.K. Sen Lane, Kolkata-30 and have appointed defendant no. 8 as lawful attorney for developing, promoting and constructing several building for sale. The plaintiff further alleged that due to cordial request of defendant no. 1 to 7 and at the assurance of defendant no. 8, the plaintiff agreed to vacate the premises by removing all establishments from the said premises. Plaintiff further alleged in the plaint that the parties entered into an agreement with an assurance to compensate and accordingly agreed as per the terms of the agreement. The plaintiff further alleged that on or about 30.11.1999, they handed over vacant possession to the defendant no. 8 but while vacating they did not remove the machineries, glass-wares and other materials and entrusted the defendant no. 8 to keep the same in his safe custody and the defendant no. 8 also assured the delivery of the same to the plaintiffs at his own costs and expenses. The plaintiff in his plaint has alleged that the goods of the plaintiff was delivered by the defendant no. 8 in damaged condition and thereby committed breach of his undertaking. They further alleged that they had made several correspondences with defendant no. 8 who failed to comply the same and accordingly the plaintiff instituted the instant suit. During pendency of the suit, the defendant no. 8 expired.

4. Learned counsel for the petitioner submits that after three years of death of defendant no. 8, the plaintiff/opposite party filed an application under Order 1 Rule 10 for adding the defendant nos. 9 and 10 who are the wife and son of deceased defendant no. 8 to be impleded as a party in this suit. He further submits that in the said application under Order 1 Rule 10(2), the plaintiff/opposite party herein falsely alleged that the petitioner no. 1 had been running a construction company under the name and style of D.C. Paul & Co. and the petitioners herein are actively attached with the said company and as such they shall be added as defendant in the suit.

5. He further submits that deceased defendant no. 8 who was the husband of the petitioner no. 1 herein was appointed as constituted attorney in personal capacity and all benefits of agreement was enjoyed by the late husband of the petitioner no. 1 personally and that with the death of defendant no. 8, the power of attorney executed by defendant nos. 1 to 7 in favour of petitioner no. 1 lapsed and revoked automatically and as such the liability if any, borne upon the late husband of the petitioner cannot be shifted to his legal heirs being the defendant nos. 9 and 10. Accordingly, the petitioners are neither the necessary party nor proper party in the suit.

6. Learned court below had taken up said application under Order 1 Rule 10 on 5.6.2018 and was pleased to allow the said application. Subsequently, the petitioner herein filed recalling application which was again refused vide other impugned order dated 13.11.2019. The petitioner further contended that while passing the impugned orders, learned court below failed to consider the t