BHAGABATI CHARAN BANERJEE Vs. MUKTIPADA CHANDRA

JUDGEMENT

(1.) - A short question comes up for decision before this court. Title Suit No. 37/76 in the 1st court of Munsif at Durgapur was dismissed for default on the 1st of February, 1982. A Misc. case being No. 35182 under Order 9 Rule 9 C.P.C. was filed on 25th of February, 1982. During the pendency of the Misc. Case the original petitioner died and his legal representatives were duly substituted. The Misc. Case ultimately succeeded and the suit was restored to file. The legal representatives of the deceased petitioner filed a petition under section 151 C.P.C. asking the court to substitute the petitioners, namely the legal representatives of the original plaintiff, now deceased, in the suit. The trial court relied upon a single bench decision in Salil Kumar v. Sailendra Nath reported in AIR 1960 Cal 203 ; 63 CWN 883 to reject the application by an impugned order No. 116 dated 13.9.88. The said order is now challenged before me.

(2.) The learned Judge in Salil Kumar's case (Supra) opined that a proceeding under Order 9 Rule 13 C.P.C. is an original proceeding independent of suit. So-substitution of a deceased party in a Misc. Case under Order 9 C.P.C. will not ipso facto amount to substitution in suit. In coming to the conclusion that it was an original proceeding the learned Judge relied upon a Division Bench judgment of this Court in Bipin Behari v. Abdul Barik 21 CalWN 30 and four other Madras decisions.

(3.) The learned counsel for the petitioner Mr. Samarjit Sengupta contends that what weighed with the learned single Judge is that a proceeding under Order 9 C.P.C. is an original proceeding. This question came up before different High Courts at different stages in connection with section 141 C.P.C. Courts had occasion to consider as to whether the provision in section 141 C.P.C. can be involved in a proceeding under Order 9 C.P.C. In that connection views were divergent. Finally there has been an amendment of section 141 C.P.C. to make the provision applicable to a proceeding under Order 9 C.P.C. Mr. Banerjee appearing for the opposite party contends that by virtue of this amendment the legislature has acknowledged a proceeding under Order 9 C.P.C. to be an original, proceedings. I find it difficult to accept this submission. There has been no occasion for the legislature to consider as to whether the proceeding under Order 9 C.P.C. is an original proceeding. On the contrary the legislature sought to put at rest the controversy as to whether section 141 C.P.C. is applicable to a proceeding under Order '9 C.P.C. Mr. Banerjee further relied upon Mst. Nurnahar Bewa v. Rabindra Nath De 1988 (1) CLJ 479 to reiterate that proceeding under Order 9 C.P.C. is an original proceeding. As a matter of fact, such a question did not fall for consideration before the Special Bench relied upon by Mr. Banerjee. It only considered as to whether despite amendment of section 141 C.P. Code by an amending Act of 1976 section 141 would be applicable to an application under Order 9 Rule 4 C.P.C. tiled to restore an application dismissed for default which was made to set aside an ex parte decree under Order 9 Rule 13 C.P.C. The question of limitation for filing an application for restoration of a Misc., Case under Order 9 Rule 13 C.P.C. also came up for consideration. The Special Bench answered the former question in the affirmative and also decided the question of limitation. In my opinion, this Special Bench decision does not render any assistance to the opposite party.