EXPRESS NEWSPAPERSLTD Vs. GIRDHARILAL JHAJHARIA

JUDGEMENT

(1.) This suit was instituted by the plaintiff against one Nand Kishore Jhajharia in 1963 for recovery of money lent and advanced. It is an admitted position that Girdharilall Jhajharia, the eldest son of Nand Kishore since deceased, was looking after the suit on behalf of his father during his lifetime, Nand Kishore Jhajharia died on 20-10-1975 but the information of his death was not given to the plaintiff until 19-9-1978 when the suit was called on for the hearing on that day. M/s. Mukherjee & Biswas was the advocate on record of Nand Kishore Jhajharia. On 13-11-1978 the plaintiff applied for substitution of the heirs of Nand Kishore Jhajharia with a prayer for setting aside the abatement and condoning the delay. It appears from the joint affidavit of service of Bishambhar Kundu and Chittaranjan Das affirmed on 17-11-1978, that copies of the original Master's Summons along with the copy of grounds were served on one Arun Kumar Jhajharia, respondent 1(c) at premises No. 12, Sunny Park, Calcutta, which is admittedly the residential house of the defendants. According to this affidavit, Arun Kumar one of the sons of the deceased accepted the service for self and on behalf of the other heirs of Nand Kishore Jhajharia. After that application for substitution was taken out M/s. Mukherjee & Biswas appeared in that application on 9-12-1978, 20-12-1978 arid 9-1-1979 on behalf of the present petitioners and by consent of the parties the matter was adjourned from time to time. Ultimately the order for substitution was made on 9-1-1979. The plaintiffs advocate on record, M/s. P. D. Himatsingka & Co. immediately by their letter dated 10-1-1979 addressed to M/s. Mukherjee & Biswas informed them about the said order. Then by another letter dated 27-1-1979 M/s. P. D. Himatsingka & Co. sent the copy of the amended plaint to M/s. Mukherjee & Biswas. M/s. Mukherjee & Biswas never alleged that they had no authority to appear on behalf of the petitioners in that application or to accept the amended plaint. Thereafter an ex parte decree was passed in the suit on 23rd April, 1983. It is alleged by the petitioners that on or about 29th Mar. 1983 the petitioner Arun Kumar Jhajharia received a letter from M/s. P. D. Himatsingka & Co. from which he came to know that an ex parte decree had been passed and he immediately communicated the said news to the other heirs of Nand Kishore Jhajharia, deceased. This petition is made by Arun Kumar Jhajharia for self and on behalf of the other heirs of Nand Kishore Jhajharia, but the petition has been verified by Arun Kumar Jhajharia alone. Prior to the taking out of this application, the present advocate on record of the petitioner M/s. L. P. Agarwalla & Co. by a letter dt. 27th April 1983 wrote to M/s. Mukherjee & Biswas enquiring from them whether the present petitioners had given any warrant of attorney or vakalatnama in their favour. The letter is as follows : --

(2.) In para 8 of the petition the petitioners have made a grievance that no writ of summons in respect of the above suit was served upon the substituted defendants. This ground has no substance because law does not require that substituted defendant should be served with fresh writ of summons.

(3.) The next ground taken by the petitioners is as follows : --