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Annapurna Debi Vs. Sm. Harsundari Dassi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberSuit No. 1665 of 1938
Judge
Reported inAIR1975Cal12
ActsCode of Civil Procedure (CPC) , 1908 - Order 22, Rules 4(4) and 9
AppellantAnnapurna Debi
RespondentSm. Harsundari Dassi and ors.
Appellant AdvocateSomnath Chatterjee, Adv.
Respondent AdvocateD. Gupta, Adv.
DispositionApplication dismissed
Cases Referred(Nani Gopal Mukherjee v. Panchanan Mukherjee). In
Excerpt:
- .....this suit on the 24th august, 1938, for certain reliefs in respect of the will of debendra deb manna, deceased, certain debuttar properties alleged to have been dedicated by the said debendra deb manna and in respect of certain other properties purchased by one jogendra deb manna out of the funds or income of the properties dedicated as aforesaid. a declaration that all alienations of properties appertaining to the said debuttar estate were void and thai the consent decree made in an earlier suit being suit no. 372 of 1915 in this court was void and of no effect and not binding on the deities was also claimed. it ap-pears that the writ of summons was duly served on the defendants who were on record at that time.2. pramila sundari laha, the original plaintiff, died on or before 2nd.....
Judgment:
ORDER

Dipak Kumar Sen, J.

1. The original plaintiff in this suit was one Pramila Sundari Laha who instituted this suit on the 24th August, 1938, for certain reliefs in respect of the Will of Debendra Deb Manna, deceased, certain Debuttar properties alleged to have been dedicated by the said Debendra Deb Manna and in respect of certain other properties purchased by one Jogendra Deb Manna out of the funds or income of the properties dedicated as aforesaid. A declaration that all alienations of properties appertaining to the said Debuttar estate were void and thai the consent decree made in an earlier suit being Suit No. 372 of 1915 in this Court was void and of no effect and not binding on the deities was also claimed. It ap-pears that the Writ of Summons was duly served on the defendants who were on record at that time.

2. Pramila Sundari Laha, the original plaintiff, died on or before 2nd February. 1943. On an application made thereafter on or about 20th December, 1943 one Karunamayee Dassi was appointed as the next friend of the plaintiff Deity in place and stead of the original plaintiff. Thirty seven years thereafter by an order of this Court made on the 10th April, 1970, Karunamayee Dassi was removed from her office as the next friend and one Tarasundari Dassi, the present petitioner, was appointed the next friend of the plaintiff Deity with liberty to proceed with the suit. It does not appear what particular steps were taken to have the suit heard thereafter.

3. After the present petitioner was appointed the next friend and was brought on record several of the defendants who were on record died. The particulars of the said deceased defendants are as follows: (1) Harendra Deb Manna, the defendant No. 9 (c) who died on 14th December, 1971; (2) Manindra Deb Manna, the defendant No. 9 (b) who died on 16th January, 1971; (3) Ramendra Deb Manna the defendant No. 14 (a) who died on 3rd July, 1973; (4) Hemendra Deb Manna the defendant No. 4 (b) who died on 7th October. 1973 and (51 defendant No. 23. Asim Krishna Dutta also died.

4. The case of the present petitioner is that from the affidavit-in-opposition affirmed by one Makhanlal Assadas Joshi on the 30th November, 1973, she for the first time came to know of some of the deaths.

5. On the 31st January, 1974, the present petitioner took out the present Master's Summons praying, inter alia, for the following orders: (a) that the delay in making this application, if any. be condoned; (b) abatement or partial abatement, if any, be set aside; (c) the death of the deceased defendants as stated in paragraphs 16, 17, 18, 19 and 20 of the petition be recorded (d) the heirs and legal representatives of the said deceased defendants be substituted in place and stead of the deceased defendants as indicated in red ink in a copy of the Cause Title and suit register including the genealogical table of the deceased defendants annexed to the petition and collectively marked with the letter 'B' (e) a copy of the order made herein together with a copy of the amended plaint be served on the substituted defendants.

6. This application has been opposed by several of the defendants including some of the purchasers of the properties which are the subject-matters of this suit.

7. The last of the defendants to die, except the defendant No. 23 as stated hereinbefore, was Hemendra Deb Manna who died on 7th October, 1973. All the other defendants died prior to that date. Under Order 22, Rule 4 of the Code of Civil Procedure, the present petitioner should have made this application within 90 days from the date of death of the defendants. That 90 days expired in respect of all the defendants who have died. No particulars have been given of the death of the defendant No. 23 or the date when the petitioner knew of such death. In the circumstances under Order 22, Rule 4, Sub-rule (3), the suit has abated as against the deceased defendants. The application to set aside the abatement should have been made within 60 days from the date of abatement. In case of most of the deceased defendants the said period of 60 days has also passed. The only ground on which, limitation is sought to be excluded is that the present petitioner came to know about the deaths for the first time on or about 30th November, 1973.

8. The said Makhanlal Assadas Joshi affirmed his affidavit on the 30th November. 1973. No particular allegation at the said affidavit have been quoted in the petition. It is surprising that the petitioner admits knowledge as from the 30th November, 1973, being the date of the affirmation of the affidavit. Some time should have normally elapsed from the affirmation and the petitioner's knowledge of the same. The affidavit must have been filed and a copy tendered to the petitioner's solicitor on usual charges. The petitioner's solicitor must have obtained such copy and made over the same to the petitioner.

9. The deceased defendants, all belong to the Manna family. From the Cause Title of the plaint it appears that all of them resided at No. 15 Surendra Nath Banerjee Road, Calcutta. The petitioner is related to them and is alleged to be interested in the Seva and Puja of the Deity located at No. 15 Surendranath Banerjee Road, Calcutta. To say the least it is surprising that the petitioner should come to know of the death of the various members of the Manna family who are rather closely related to her from the affidavit of a stranger. It is also significant that so far as ascertainment of the heirs and legal representatives are concerned, the present petitioner did not have any difficulty or any time was shown to have elapsed for the purpose of such enquiry.

10. The Standing Counsel Mr. D. Gupta, appearing on behalf of some of the respondents, has relied on a decision of the Supreme Court reported in : [1964]3SCR467 in the case of Union of India v. Ram Charan, where it was laid down that the expression 'sufficient cause' under Order 22, Rule 9 should not be liberally construed. The Supreme Court further held that Rule 9, Order 22 of the Code of Civil Procedure requires proof that the plaintiff was prevented by sufficient cause from continuing the suit The mere allegation about his not coming to the know of the death of the opposite party is not sufficient. He has to state reasons which, according to him, led to his not knowing of the death of the defendant within reasonable time and he has to establish such reasons to the satisfaction of the Court, specially when the correctness of those reasons is challenged by the legal representatives of the deceased.

11. In the instant case, a challenge has been thrown by one of the respondents, namely, defendant No. 5 (i) Nripendra Deb Manna. It is alleged in his affidavit that the petitioner frequently came and stayed in the premises No. 15 Surendranath Banerjee Road, Calcutta with her brothers and she has sufficient knowledge of the death of the defendants at the material time. In her affidavit-in-reply the petitioner has not denied that she came to Calcutta at any time but no particulars have been given as to when she came to Calcutta and visited the said premises. No explanation has been furnished by the petitioner why the deaths of her relatives and kinsmen were not known to her.

12. Mr. Somnath Chattereje, appearing on behalf of the petitioner has relied on Order 22, Rule 4, Sub-rule (4) as incorporated by this Court. The said Rule is as follows

'(4) Whenever the Court thinks fit it may exempt the plaintiff from the necessity of substituting the legal representative of a defendant who has failed to appear and contest the suit at the hearing: and judgment may in such case be pronounced against the defendant notwithstanding his death, and such judgment shall have the same force and effect as if it had been pronounced before the death of such defendant'. It is argued that some of the deceased defendants did not file their Written Statement and the necessity of substituting their legal representatives is exempted under the sub-rule.

13. In answer Mr. Gupta has relied on a case reported in (1955) 59 Cal WN at p. 304 (Nani Gopal Mukherjee v. Panchanan Mukherjee). In this decision, a Division Bench of this Court held that where no application has been made for substitution under Order 22, Rule 4 (1) of the Code of Civil Procedure and no order for exemption has been made under the provisions of Sub-rule (4) of Rule 4 of Order 22, the suit shall abate. The Court's power to exempt under Order 22, Rule 4 (4) can be exercised only before an abatement has taken place and cannot be exercised after abatement. This decision is binding on me and the Sub-rule (4) of Order 22. Rule 4 is of no help to the petitioner.

14. Considering the facts and circumstances and the law as discussed above, I hold that the petitioner is not entitled to any order in this application. Except recording the death of the deceased defendants this application is dismissed. The petitioner will pay the costs of the appearing respondents.

15. Certified for counsel.


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