IN THE HIGH COURT AT CALCUTTA EXTRA ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL SIDE I.A. GA 3 of 2025 E.O.S. No. 42 of 1999 Sarvesh Kumar Chowdhury & Anr.

Vs.

Sri. Sambhu Chanran Ghosh BEFORE:

THE HON’BLE JUSTICE BISWAROOP CHOWDHURY Date: April 29, 2025.

Appearance:

Mr. Mohit Gupta, Adv.

Mr. J. Sarkar, Adv.

Mr. A.P. Agarwalla, Adv.

For the petitioner.

This is an application for substitution filed by the plaintiffs with a prayer for recording the death of the original defendant, Sri Sambhu Charan Ghosh and to substitute – the legal heirs of the deceased defendant mentioned in paragraph 19 of the affidavit in support of Masters’ Summons as defendant no 1(a) and 1(b) after condoning the delay and setting aside abatement. A further prayer to amend the plaint by reflecting substitution of legal heirs of the deceased defendant to reflect majority of plaintiff no-1(a) as shown Red ink in Annexure ‘G’ and for leave to re-verify and re-affirm the plaint after amendment and to cause service of the amended plain upon the substituted heirs of the Original defendant, and for fixing a date for hearing GA – 2 of 2025.

It is the contention of the plaintiff/petitioner that the instant suit was filed by the plaintiff no-2 and Bhagwati Prasad Chowdhury, since deceased in the City Civil Court at Calcutta on 1st February 1982 as Title Suit No-172 of 1982 for recovery of possession of the suit property i.e. one show room situated on ground floor facing Harrington street now known by the name of Ho Chi Minh Sarani measuring 309.08 sq ft at premises no. 2/2A Harrington street, now 2/2A Ho Chi Minh Sarani measuring 309.8 sq ft Kolkata described in plaint schedule. The plaintiffs also filed Money Suit No. 1030 of 1982 in the City Civil Court at Calcutta against the defendant for damages and mesne profit. The defendant appeared and contested both suits by filing his written statement. It is further contended that during pendency of the said Title Suit No-172 of 1982 and Money Suit No. 1030 of 1982 the said Bhagwati Prasad Chaudhury died on 12th December 1984 and upon his death his son the first plaintiff who was then a minor under the age of 18 years was substituted as plaintiff no. 1(a). After filing of Additional Written Statement by the defendant the trial of both suits started and the evidence on behalf of the plaintiffs and the defendant was concluded. The plaintiff no.2 was examined as P.W-1. The defendant also gave evidence as DW-1 and one Mritunjay Ghosh deposed as D.W-2. It is also contended that in October 1999, both the said Title Suit No- 172 of 1982, and Money Suit No-1030 of 1982, were transferred to this Court under Clause 13 of the Letters Patent 1865 and records of both the said suits were transmitted from the City Civil Court at Calcutta to this Court. Upon transfer the instant suit has been registered as Extra Ordinary Suit No. 42 of 1999 and the said Money Suit No-1030 of 1982 has been registered as Extra Ordinary Suit No. 43 of 1999. Evidence is complete prior to transfer to this Court only arguments are to be advanced by the parties.

It is contended that the suits appeared for final hearing before this Hon’ble Court on 10th March 2025 when only the arguments were to be made on behalf of the parties. On 10th March 2025 the defendant did not appear and accordingly the suit was adjourned to another date with a direction upon the Learned Advocate representing the plaintiffs to serve notice upon the Learned Advocate representing the defendant. In terms of the direction dated 10th March 2025 notice dated 10th March 2005 was served upon Mr. Shiv Shankar Banerjee Learned Advocate representing the defendant.

During pendency of the suit the Advocate on record then representing the plaintiffs was designated as Senior Advocate and upon being informed by him the plaintiffs obtained change of Advocate. The plaintiff no. 1(a) who was born on 22nd July 1970 attained majority on 21st July 1988. It is further contended that several documents which were ten