SHYAM SUNDAR GUPTA Vs. MIRA DEVI GUPTA

JUDGEMENT

(1.) The opposite party No. 1 herein (hereafter the Plaintiff) instituted Title Suit No. 62 of 2003, being a suit for declaration and injunction against 8 (eight) Defendants and 1 (one) proforma Defendant. It is pending on the file of the learned Civil Judge (Junior Division), Additional Court at Sealdah. According to the Plaintiff, the Defendant No. 7 having breathed his last during the pendency of the suit, the right to sue survived against Defendant Nos. 1 to 6 and 8 only and not against anybody else. A prayer was made for expunging the name of the Defendant No. 7 from the cause title of the plaint and to proceed with the suit against the remaining Defendants, who are the surviving legal heirs of deceased Defendant No. 7.

(2.) The petition was contested by the Defendant No. 1, the Petitioner herein (hereafter the Petitioner). According to him, the Defendant No. 7 left behind him his widow (Smt. Manju Gupta) who had not been substituted in place and instead of Defendant No. 7 and, therefore, an order of abatement of the suit ought to be passed.

(3.) Upon a contested hearing, the learned Judge by order No. 146 dated April 28, 2010 allowed the petition filed by the Plaintiff for expunging the name of the Defendant No. 7 from the cause title of the plaint. The learned Judge was of the opinion that if at all the Defendant No. 7 had left behind a widow, an assertion that was seriously disputed by the Plaintiff, it was open to such widow to come forward with an application for her substitution instead and in place of the deceased Defendant No. 7. Reliance in this connection was placed on the Bench decision of the Madras High Court (M. Kuppuswami Chetty and Ors. v. M. Singaravelu Chetty and Ors., 1923 AIR(Mad) 679). Since no such prayer had been made by the widow of the deceased Defendant No. 7, the suit could proceed against the surviving Defendants in terms of provisions of Order XXII Rule 2 of the Code of Civil Procedure (hereafter the Code).