1. The suit was instituted by the Corporation of Calcutta in 1967 against the several defendants. The claim of the plaintiff Corporation is on account of arrears of consolidated rates due and payable in respect of premises No. 507, Rabindra Sarani, formerly known as 260, Chitpur Road, Calcutta. According to the plaintiff the ownership of the said premises WHS vested in several owners thereof in several divided and separated shares and under Section 133(1) of the Calcutta Municipal Act, 1923 and the thenvaluation of the said premises was apportioned amongst the several share-holders or co-owners thereof according to their respective shares without assigning any separate number thereto and consolidated rate bills were made out and issued in apportioned shares accordingly.
2. In this suit the plaintiff has claimed apportioned share of consolidated rate bills of the Corporation of Calcutta which remained unpaid in respect of Sm. Satyabala Ghosh and others, Shebaits of Sree Sree Iswar Gokul Chand Jew. The claim in the suit is for a sum of Rs. 5314.42 in respect of certain apportioned share of consolidated rale bills made out and issued in the name of Sri Nalinakshya, Salindra Sekhar and Achalendra Sekhar Bose by the Corporation of Calcutta and which remained unpaid.
3. At the hearing, Mr. Sujit Auddy, learned Advocate appearing for the defendant 1, Himanshu Sekhar Basu has submitted that defendant 2 Satyabala Ghosh has since died and no substitution has been made. As the claim in this suit is in respect of he apportioned share of consolidated rate bills issued in the name of Salyabala Ghosh, this suit cannot proceed without substitution. Mr. Auddy has also submitted that the suit has already abated and no application was made by the plaintiff for setting aside the abatement.
4. It was contended by Mr. Kar. learned Advocate appearing on behalf of the Corporation of Calcutta that the plaintiff had no knowledge about the death of defendant 2, Satyabala Ghosh and it was the duty of the Advocate on record of defendant 2 to intimate the plaintiff about the death of defendant 2 lo enable the plaintiff to make the necessary application for substitution. This contention of Mr. Kar cannot be accepted inasmuch as in another suit being Suit No. 1021 of 1955 between the Corporation of Calcutta and Khagendra Nath Sen & ors. steps were taken for substitution. In that suit the Corporation of Calcutta was the plaintiff and the suit was instituted against several defendants one of whom was Satyabala Ghosh, since deceased. An application in that case was made by the Corporation of Calcutta on 25th April 1978 and in sub-para (e) of para 20 of the said application it has been stated that SatyabalaGhosh, defendant 2 died intestate sometime in March 1978 leaving two sons. viz. Charu Chandra Ghosh and Mahesh Chandra Ghosh and one daughter, Gouri Rani Ghosh as her sole heirs and heiress. Therefore, it appears that having knowledge of the death of the second defendant in this suit, no step has been taken by the plaintiff for substitution, in that view of the matter, the contention of Mr. Kar cannot be accepted and the suit is liable to be dismissed on that ground.
5. Mr. Kar has however referred to provisions of Sub-rule (4) of Rule 4 of Order 22 of the Code of Civil Procedure. The said sub-rule reads as follows : --
'The court whenever it seems fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant, who has failed to file written statement or who having filed it. has failed to appear and contest the suit at the hearing, and judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before the death took place.'
6. Under Sub-rule (4) of Rule 4 of Order 22, no doubt, discretion has been given to the Court exempting the plaintiff from the necessity of substituting the legal representatives of a defendant but where the plaintiff was aware of the death of the defendant and also took steps for substitution in another suit instituted in this Court, there is no reason why discretion should be exercised in such a case in favour of the plaintiff exempting the plaintiff from the necessity of substituting the legal representatives of such a defendant being defendant 2. Moreover, the plaintiff has sought to claim on the basis of the bills apportioned in the name of defendant 2, who had died and it was the duty of the plaintiff to make necessary substitution. This provision cannot, in my opinion, override the other relevant provisions of the Act requiring substitution and the abatement of the suit in case such substitution is not made within the time prescribed under the law.
7. Mr. Kar has also relied on a decision of this Court in the case of Kaviraj Sudhindranath Sen v. Jibandas Agarwalla reported in : AIR1963Cal467 . There theCourt considered the provisions of Sub-rule (4) of Rule 4 of Order 22 of the Civil Procedure Code. In that case an application was made for recording the death of the deceased defendants. In para 18 of the judgment it was noted as follows :
'Mr. Majumdar submitted that the plaintiffs prayers' that the recording of the deaths of the deceased defendants K.M. Siedulla alias Saha Alam (defendant 15) K. Ashraf Alam (defendant 6) and K. Md. Esmail (defendant 37) is not needed and that there has been no abatement in this suit by reason of the said deaths, can he supported on the basis of Calcutta Amendment added to Sub-rule (4) of Rule 4 of Order 22 of the Civil Procedure Code'.
The Court in paras 21 and 22 held as follows : --
21. The said deceased defendants have failed to appear and/or contest the suit at the hearings after Messrs. M.K. Roy Chowdhury & Co. Solicitors withdrew from the suit.
22. Therefore, in my opinion their case falls within the amendment to Sub-rule (4) of Rule 4 of Order 22 of the Civil Procedure Code. Hence, there is no necessity for substitution of the heirs and legal representatives of the said defendants. Consequently there cannot be and there was no abatement of the suit.
Hence the suit is competent as it is.'
8. In this case, no application has been made for exemption. Furthermore, no grounds have been made out why the Court should, in a case like this, exempt the plaintiff from substituting the legal representatives when the plaintiff had full knowledge that the defendant 2 has died long ago and when, as a matter of fact, an application was made in another suit. Having regard to the facts and circumstances of this case, I am unable to accept the contention of Mr. Kar that the Court should exercise its discretion under the provisions of Sub-rule (4) of Rule 4 of Order 22 should apply.
9. For the reasons aforesaid, the suit is dismissed.
10. The plaintiff shall pay costs only to the appearing defendant 1 assessed at 40 Gms.