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2017 Supreme(Tri) 341
IN THE HIGH COURT OF TRIPURA, AGARTALA
S. TALAPATRA, J.
Smti. Kalpana Paul Sarkar W/o Lt. Hiralal Sarkar & Ors. - Appellants
Versus
Sri Ranjit Kumar Sarkar S/o Late Adhir Ranjan Sarkar & Ors. - Respondents
RSA 60 of 2013
Decided On : 05-12-2017
For the Appellants :Mr. SM Chakraborty, Sr. Advocate Ms B Chakraborty, Advocate
For the Respondents:Mr. D Chakraborty, Sr. Advocate Mr. H Laskar, Advocate
The main legal point established in the judgment is the importance of adhering to the procedural requirements under Order XXII of the CPC for substitution and setting aside abatement, and the court's authority to set aside orders passed without jurisdiction or in contravention of procedural rules.
Headnote:
Substitution - Legal Heirs - Order XXII Rule 3, CPC - Sections 151, 100, CPC - [Order XXII Rule 3, CPC, Section 151, Section 100]
Fact of the Case:
The case involved a dispute over the substitution of legal heirs in a suit for declaration of title and permanent injunction. The trial court decreed the suit, but the first appellate court set aside the judgment and remanded the case for fresh trial. The legal heirs of the deceased plaintiff filed applications for substitution and setting aside abatement, which were allowed by the trial court. The defendant-appellants challenged the judgment and decree of the first appellate court in this appeal under Section 100 of the CPC, raising the issue of perversity in the lower court's judgment and decree.
Finding of the Court:
The court found that the orders for substitution and setting aside abatement were unsustainable in law, as they were passed without following the proper procedure. The court set aside the judgment and decree of the lower courts and remanded the matter for proper substitution and setting aside abatement, emphasizing the need for adherence to the procedural requirements under Order XXII of the CPC.
Issues: The issues involved the legality of the orders for substitution and setting aside abatement, the perversity of the lower court's judgment and decree, and the proper application of procedural rules under Order XXII of the CPC.
Ratio Decidendi: The court held that the orders for substitution and setting aside abatement were passed without jurisdiction and in contravention of the procedural requirements under Order XXII of the CPC. The court emphasized the need for adherence to the procedural rules and set aside the lower court's judgment and decree, remanding the matter for proper substitution and setting aside abatement.
Final Decision: The appeal was allowed, the judgment and decree of the lower courts were set aside, and the matter was remanded for proper substitution and setting aside abatement in accordance with the procedural requirements under Order XXII of the CPC.
1. Heard Mr. SM Chakraborty, learned senior counsel assisted by Ms B Chakraborty, learned counsel appearing for the appellants as well as Mr. D Chakraborty, learned senior counsel assisted by Mr. H Laskar, learned counsel appearing for the respondents.
2. At the outset, Mr. Chakraborty, learned senior counsel appearing for the appellant has submitted that both the trial court as well as the first appellate court has without properly addressing the matter relating to substitution of one of the plaintiffs, namely, Sudhir Ranjan Sarkar proceeded with the trial and finally caused serious prejudice to the legal heirs of Adhir Ranjan Sarkar, the sole plaintiff, who instituted the suit for declaration of title and permanent injunction in respect of the suit land as described in the schedule appended to the plaint.
3. The original plaintiff claimed that he was the proprietor of the suit property. Initially the suit was decreed in favour of the plaintiff but when the present appellants [the defendants] filed an appeal under Section 96 of the CPC against the said judgment the first appellate court interfered with the judgment and decree and set aside the same. But without passing any order on merit the matter was remanded for fresh trial. Against the said judgment of remand the plaintiff came to this Court by filing an appeal under Section 100 CPC, but the high court declined to interfere and affirmed the judgment of the first appellate court.
4. The trial court, i.e. the Court of the Civil Judge, Sr. Div. Sabroom, South Tripura on fresh trial decreed the suit in pursuance to the judgment dated 19.10.2012 delivered in the said suit being Title Suit No. 01 of 2011. Being aggrieved, the present appellants, who were the defendants in the suit, filed a first appeal under Section 96 CPC in the Court of the District Judge, South Tripura, Udaipur as it then was against the judgment and decree dated 19.10.2012.
5. After hearing, the first appellate court dismissed the said appeal being Title Appeal No. 13 of 2012 by the judgment dated 07.08.2013. The said judgment has been challenged in this appeal filed under Section 100 of the CPC by the defendant-appellants.
6. At the time of admission, the following substantial question of law was framed by the order dated 10.03.2014:
“Whether the judgment and decree passed by the trial court and the appellate court suffers from perversity?”
The appellant was given leave to raise any other substantial question of law at the time of hearing of the appeal.
7. Mr. SM Chakraborty, learned senior counsel appearing for the appellant has brought to the notice of this Court that one application was filed by the legal heirs of the sole-plaintiff namely, Adhir Ranjan Sarkar on 24.07.2012 for setting aside the abatement and substitution of the legal heirs along with a separate application for condoning the delay that had occurred in filing the said application.
8. The said application was allowed by the trial court by its order dated 29.08.2012. For purpose of reference the entire order dated 29.08.2012 from the LC Records is extracted:
“29.08.2012
Both the parties are represented by their respective Ld. engaged counsel.
Today was fixed for order on the petition of the plaintiff U/O XXII Rule (3) CPC praying for substitution of the legal representative of the deceased plaintiff Adhir Ranjan Sarkar together with petition U/O XXII Rule (2) CPC praying for setting aside abatement of the suit and also a petition U/S 5 of the Limitation Act for condonation of delay.
Against the petition of the plaintiff the defendant filed written objection.
I have also heard Ld. counsel appearing for both the parties on the petition.
Also perused the case record.
Ld. counsel for the defendant did not raise any objection at the time of hearing on the petition filed by the plaintiff.
It is seen that the sole plaintiff Adhir Ranjan Sarkar died leaving behind (1) Smt. Sailabala Sarkar, (Wife), (2) Rajit Sarkar, (3) Samarjit Sarkar, (4) Ind
