BANESWAR MUKHERJEE Vs. DULAL CHAND MUKHERJEE AND ORS.

JUDGEMENT

(1.) I have heard Mr. Tarak Nath Roy and Mr. Bhaskar Ghosh, the learned Advocates appearing on behalf of the parties, upon the Civil Rule No. 3806 (M) of 1975 and an application for substitution after setting aside the abatement and condonation of delay, if any, or in the alternative for exempting the appellant-petitioner from substituting the legal representatives of the respondent Kshetrapal Mukharjee who was the defendant no. 2 in the original suit.

(2.) The relevant facts for the purpose of determination of the matters before me may be stated in brief. The plaintiff Opposite parties and another who died on 25.3.71 filed a suit against the petitioner before me Baneswar Mukherjee and another Kshetrapal Mukherjee who was the defendant no. 2 in the original suit. The suit was decreed ex parte on 27.2.70 Subsequently on 13.4.70 Baneswar, the defendant no. 1, filed an application under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree. The defendant no. 2 died on 9.10.71. He was not mentioned in the Column of parties upon the application under Order 9 Rule 13. The miscellaneous case was dismissed on merit on 16.8 73. Against that decision Baneswar preferred a Miscellaneous Appeal before the learned District Judge on 15.11.73. On 24.2.74 Baneswar filed an application for substitution of the legal representatives and heirs of the plaintiff no. 4 who was made a party in the appeal on the allegation that the petitioner came to know about the death of the said plaintiff recently and that he was not aware of his death which took place on 25.3.71. That application was rejected by the appellate court below and against that order a First Miscellaneous Appeal has been preferred before this Court which is pending. Here the petitioner filed an application for substitution of the legal representatives of the deceased Kshetrapal as already mentioned. At the time of admission of the First Miscellaneous Appeal a Rule was issued upon the application of the petitioner for stay of the Miscellaneous Appeal during the pendency of the appeal before this Court. At the request of the petitioner and the plaintiff-respondent in the Miscellaneous Appeal, the said Rule and the application regarding the substitution have been heard as they are found ready.

(3.) I will first deal with the application for substitution of the legal representatives of the deceased Kshetrapal or in the alternative for exemption from making any substitution according to law. Mr. Roy has contended before me that besides his client's allegation that he was not aware of the death of Kshetrapal previously within time, the provision of law in order 9 Rule 14 read with Rule 13 of the Code of Civil Procedure would clearly say that in an application under order 9 Rule 13, Civil Procedure Code, particularly in the facts of the present case, the presence of the defendant no. 2 is not necessary and that he may not be heard being uninterested in the matter of restoration of the suit. Mr. Ghosh has, however, challenged this contention on the ground that the defendant no. 2 who was a party in the original suit should have been impleaded as a party in the application under Order 9 Rule 13, Civil Procedure Code. His further contention is that he being a necessary party in the suit, his absence in the application for restoration of the suit was fatal for the petitioner to get any relief.