KIBRIA KHONDAKAR Vs. HRISHIKESH BANIK

JUDGEMENT

(1.) This application is directed against the order No. 36 dated September 14, 2009 passed by the learned Additional District Judge, Second Court, Burdwan in Misc. Case No. 15 of 2009 arising out of Title Appeal No. 75 of 2007 arising out of Title Suit No. 145 of 1990.

(2.) The short fact is that the opposite party Nos. 1 & 2 instituted a suit being Title Suit No. 145 of 1990 for eviction in respect of a shop room, as described in the schedule of the plaint, against the opposite party No. 3 and the father of the Petitioner, namely, Osman Gani (now deceased). The said Title Suit No. 145 of 1990 was decreed ex parte for non-appearance of the Defendants on May 8, 2007. The opposite party No. 3 alone filed an appeal being Title Appeal No. 75 of 2007 against the said ex parte decree omitting the name of Osman Gani. The Petitioner was not initially aware of the filing of the appeal. But when he came to know about such fact, he filed an application on May 2, 2008 for addition of party in the said appeal. That application was allowed and the Petitioner was added as the Respondent in the said appeal. The appeal was then fixed for peremptory hearing but the opposite party No. 3 did not deliberately proceed with the appeal resulting in dismissal of the appeal for default on January 7, 2009. Thereafter, the Petitioner filed an application for rehearing of the appeal on merits by filing an application which was registered as Misc. Case No. 15 of 2009. The said misc. case was ultimately dismissed as not maintainable in law by the order impugned. Being aggrieved, this application has been preferred by the Petitioner.

(3.) Mr. H. Bhattacharya, learned Advocate appearing on behalf of the Petitioner, submits that since the suit was decreed ex parte against a dead person, it is not valid at all. The opposite party No. 3 was looking after the suit on behalf of the Defendants and he colluded with the Plaintiffs and for that reason the suit was decreed ex parte. Even at the time of filing the appeal by him, he did not implead the Petitioner as co-Appellant. Subsequently, at his initiation the Petitioner was impleaded as a Respondent in the said appeal. But the appeal was dismissed for default and so he has prayed for rehearing of the appeal. The father of the Petitioner having died during pendency of the suit, the decree against a dead person could not be a valid decree. So, the decree should be set aside. All the subsequent orders should also be set aside. In support of his contention, He has relied upon the decision in the case of Kanailal Manna and Ors. v. Bhabataran Santra and Ors.,1970 AIR(SC) 99. He has also contended that the suppression of facts amounts to fraud and in support of his contention, he has relied on the decision of S.P. Chengal Varaya naidu (dead) v. Jagannath (dead) and Ors., 1994 1 SCC 1. He has also referred to the decision of Mohd. Yunus v. Mohd. Mustaqim and Ors., 1984 AIR(SC) 38 on the power of superintendence of the High Courts over the lower Courts.