Heirs of deceased defendants can contest ex parte decrees, emphasizing the necessity for proper notification and substitution under procedural rules.

For the Petitioner : Mr. Md. Farhaduddin Ms. Shamama Nasrin Mr. Shabbir Yazdani For the opposite party : Mr. Kamesh Jha Ms. Srabani Biswas Heard on : 01/07/2025 Judgment on : 01/07/2025 Hiranmay Bhattacharyya , J. :

1. This application under Article 227 of the Constitution of India is at the instance of the applicant under Order 9 Rule 13 of the Code of Civil Procedure and is directed against an order dated May 16, 2025 passed by the learned Judge, 5^th Bench, City Civil Court at Calcutta in Miscellaneous Appeal No.7 of 2024.

2. The opposite party herein filed a suit for eviction against one Shivalik Mistri and Arvind Mistri. The said suit was decreed ex parte by a judgment and decree dated September 22, 2022.

3. The petitioner herein filed an application under Order 9 Rule 13 of the Code of Civil Procedure praying for setting aside the ex parte decree on the ground that after the death of his father, namely, Shivalik Mistri, the petitioner was neither substituted in the suit nor any intimation about the pendency of the suit was given to him. The said application was registered as Miscellaneous Case No.21 of 2023.

4. The learned trial judge by an order dated January 29, 2024 dismissed the miscellaneous case only on the ground that the petitioner failed to produce any necessary document showing that at the time of death of Shivalik Mistri, the petitioner herein was residing with him and enjoyed the suit premises with him and that he inherited the tenancy right of his father.

5. Challenging the said order the petitioner preferred a Miscellaneous Appeal No.7 of 2024 and the learned Judge, 5th Bench, City Civil Court at Calcutta by an order dated May 16, 2025 dismissed the said miscellaneous appeal. The learned judge of the Appellate Court upon holding that after the death of Maro Mistri, the original tenant, Shivalik Mistri and Arvind Mistri were accepted as joint tenant and upon the death of Shivalik Mistri the tenancy devolved upon the surviving tenant and the right to sue only survives against the defendant No.2 i.e against Arvind Mistri. On such finding the learned judge of the Appellate Court dismissed the said miscellaneous appeal.

6. The learned advocate appearing for the petitioner submits that the petitioner was residing with Shivalik Mistri and the petitioner was not aware of the pendency of such proceeding. He further submits that after the death of Shivalik Mistri the petitioner was not substituted in the suit.

7. Mr. Jha, learned advocate appearing for the opposite party seriously disputes the submission of learned advocate for the petitioner. He submits that the petitioner could not produce any documents in support of his claim that he was the heir of the deceased defendant No.1.

8. Heard the learned advocates for the parties and perused the materials placed.

9. After going through the order of the learned judge of the Appellate Court, this Court finds that the learned judge of the Appellate Court proceeded on the basis that after the death of Shivalik Mistri, the learned advocate representing him did not notify the names of his heirs and successors and for which his name was expunged.

10. Order 22 Rule 10A of the Code of Civil Procedure deals with the duty of the pleader to communicate to Court the death of the party. It states that whenever a pleader appearing for a party to the suit comes to know of the death of that party, he shall inform the Court about it, and the Court shall thereupon give notice of such death to the other party, for this purpose, the contract between the pleader and the deceased party shall be deemed to subsist.

11. On a bare reading of the aforesaid provision it appears that the duty of the pleader appearing for a party after coming to know of the death of such party is only to inform the Court about the factum of death. The statute does not cast any obligation upon such pleader to disclose the names of the heirs of the deceased party.

12. Be that as it may, since the carriage of proceeding lay with th