SOMA SARMA HALDER Vs. SRI BASUDEB HALDER

JUDGEMENT

(1.) Title Suit No. 169 of 2006 has been instituted by the present petitioners for declaration of tenancy right in the Court of the learned Civil Judge, Junior Division, 3rd Court at Alipore. The defendants were Smt. Gouri Haider and Sri Basudeb Haider, the mother and brother respectively of the petitioner No. 1. During pendency of the suit, Smt. Gouri Haider died. An application was filed by the surviving defendant for expunging the name of his mother, Smt. Gouri Haider (since deceased), on 3rd June, 2010. The petitioners filed their objection thereto. The petitioners simultaneously had filed an application under Order 22 Rule 4, Civil Procedure Code, to bring on record the heirs and legal representatives of the deceased defendant No. 1.

(2.) The application under Order 22 Rule 4 of the Code together with the petition for expunging the name of the deceased defendant No. 1 was taken up for consideration by the learned Judge. By order No. 36 dated 15th September, 2010, the application of the petitioners was rejected whereas the application filed by the surviving defendant, being the defendant No. 2, was allowed. The said order is the subject-matter of challenge in the present application under Article 227 of the Constitution.

(3.) The learned Judge recorded that the suit property initially belonged to Sri Tulsi Haider (since deceased), the husband of the deceased defendant No. 1 and the father of the defendant No. 2 in the suit. He had executed a Will and had bequeath the suit property in favour of the defendant No. 2, providing for life interest in favour of the mother, i. e. Smt. Gouri Haider. With the demise of Smt. Gouri Haider, the learned Judge was of the view that the right to sue did not survive against the deceased defendant No. 1 and that the defendant No. 2 being on record, the suit would proceed against him.