OD – 15, 16, 17 & 18 ODER SHEET IN THE HIGH COURT AT CALCUTTA Ordinary Original Civil Jurisdiction ORIGINAL SIDE IA NO. GA/3/2024 In CS/212/2019 ASHOK RAMNIKLAL MANSATA Vs CHANDRAKANT GIRDHARDAS MANSATA AND ORS.

IA NO. GA/4/2024 In CS/212/2019 ASHOK RAMNIKLAL MANSATA Vs CHANDRAKANT GIRDHARDAS MANSATA AND ORS.

IA NO. GA/5/2024 In CS/212/2019 ASHOK RAMNIKLAL MANSATA Vs CHANDRAKANT GIRDHARDAS MANSATA AND ORS.

IA NO. GA/6/2024 In CS/212/2019 ASHOK RAMNIKLAL MANSATA Vs CHANDRAKANT GIRDHARDAS MANSATA AND ORS.

BEFORE:

The Hon’ble JUSTICE SUGATO MAJUMDAR Date: 16th February, 2026 Appearance:

Mr. Rupak Ghosh, Adv.

Mr. Ayan Dutta, Adv.

Mr. A. Kundu, Adv. Ms. A. Sarkar, Adv. …for the Petitioner Mr. Debnath Ghosh, Sr. Adv.

Mr. B. Mukherjee, Adv. Mr. A. Chaudhury, Adv.

…for the Defendants.

The Court: GA 5 of 2024 is an application filed by the Plaintiff/Petitioner, praying for, among others granting exemption from the necessity of substituting the legal heirs and representatives of the Defendant No. 1 under Order XXII Rule 4 (4) of the Code of Civil Procedure, 1908.

Sum and substance of the application is that the Defendant No. 1 expired on

22^nd December, 2020. Time to file written statement on behalf of the Defendant No.1 expired on 19th February, 2020 much prior to the death of the Defendant No. 1. The proposed legal heirs of the Defendant No. 1 did not make any attempt to implead themselves in the instant suit in place of the deceased Defendant No.1.

The Plaintiff/Petitioner made an application for substitution of the Defendant No.1 on 28/09/2022. A Co-ordinate Bench of the Court in terms of the Order dated 12^th September, 2023 dismissed the application. The effect was that the legal heirs of the Defendant No.1 could not be substituted and the suit remain abated against the Defendant No.1.

In this application the Plaintiff/Petitioner pleaded that since Defendant No.1 did not enter into appearance and contest the same by filing written statement, the latter is entitled to as a matter of right proceed with the instant suit exempting the legal representatives to be added in terms of Order XXII Rule 4 (4) of the Code of Civil Procedure, 1908.

The Defendants filed affidavit-in-opposition against the instant application objecting to the same. It was contended that the Co-ordinate Bench did not allow the substitution application as there was delay of 643 days. The Appellate Court modified that order. It was further contended that the instant suit was barred under provision of Section 10 of the CPC and the suit has been abated as a whole. It was further contended that power under Order XXII Rule 4 (4) of the Code of Civil Procedure, 1908 cannot be exercised once the abatement has occurred in terms of Order XXII Rule 4 (3) of the Code of Civil Procedure, 1908. According to the Defendant/Respondent, the instant application merits summary dismissal.

Mr. Rupak Ghosh, the Learned Counsel for the Plaintiff/Petitioner argued firstly, that although the writ of summons had been duly served upon the Defendant No.1, the latter failed to enter appearance and contest the suit by filing written statement. This factual matrix opened up a ground for application of Order XXII Rule 4 (4) of the Code of Civil Procedure, 1908. He further contended that although a suit may abate on account of death of one of the Defendants and there is no substitution of his legal heirs, the provisions of Order XXII Rule 4 (4) of the Code of Civil Procedure, 1908 is still applicable as an exception to the rule. Mr. Ghosh relied upon T. Gnanavel Vs. T.S. Kanagaraj & Anr. [(2009) 14 SCC 294], Elisa &

Ors. Vs. A. Doss [(1991) SCC OnLine Mad 9].

Mr. Debnath Ghosh, the Learned Counsel for the Defendant argued firstly that so far as the Order XXII Rule 4 (4) is concerned, Court may exempt the Plaintiff from substituting. There is no mandate but discretion is left to the Court as to whether or not to exempt the Plaintiff from the necessity of substituting the legal heirs. Use of the word ‘may’ assumes sign