ANJALI KAMDU Vs. SHIB SHANKAR KUNDU

JUDGEMENT

(1.) THE fact leading to the filing of the First miscellaneous Appeal and the Civil Revision is that the appellants/petitioners, as plaintiffs, filed the suit against the defendants/respondents/opposite parties praying for declaration, recovery of possession by eviction of licensee and permanent injunction. According to the plaintiffs, Anath Bandhu Kundu, gopal Chandra Kundu and Dina Bandhu Kundu being the brothers were the co-sharers in respect of the suit property. As such, all of them were shown as plaintiffs in the suit. The suit was heard by the learned Trial Court and was dismissed on contest.

(2.) CHALLENGING the said judgment and decree, the plaintiffs preferred Title appeal No. 26 of 1995 before the learned District Judge, Barasat. During the pendency of the appeal, it was submitted by the appellants that one of the appellants/plaintiffs being appellant No. 3 Dina Bandhu Kundu expired on 17/7/2003 leaving behind his son, two daughters and his widow as his legal heirs. One Jyotsna Kundu who is a stranger in the proceeding, filed an application under Order XXII Rule 3 read with section 151 of the Code of civil Procedure praying for substitution of the heirs of the deceased Dina bandhu Kundu. The learned Additional District Judge, Fast Track Court No. 2 at Barasat, after considering the said application for substitution, rejected the same on contest vide order No. 65 dated 22/1 /2004 on the ground that it was not maintainable in law as the applicant Jyotsna Kundu was not a party to the proceeding and her status was also not disclosed in the verification. Due to the rejection of the said petition, the appeal abated as a whole and the appellants/petitioners filed another application under Order XXII Rule 9 of the Code of Civil Procedure for the purpose of setting aside abatement, which took place due to the death of the appellant No. 3 Dina Bandhu Kundu. Said petition was registered as Misc. Case No. 2 of 2004, but it was dismissed on contest by the learned First Appellate Court on 14/1/2005.

(3.) CHALLENGING the said order of dismissal, the appellants/petitioners filed the instant appeal. Thereafter at a much belated stage viz. about one and half years from the date of passing order dated 22/1 /2004, rejecting the prayer of substitution, they filed another application under Article 227 of the constitution of India, which is the present revisional application.