MD MOOSA Vs. SHAMSUL HAQUE

JUDGEMENT

(1.) Two applications have been filed being G. A. No. 3713 of 2008 and G.A. No. 1519 of 2009. In G.A. No. 3713 of 2008 the petitioner therein seeks an extension of time to effect the amendment directed by order dated 5th January, 2008 and transposition of the plaintiff No. 2 as defendant No. 9 and for service of the plaint and the summons on the defendant No. 9. In G.A. No. 1519 of 2009 the applicant therein have sought recalling of the order dated 5th January, 2008 on the ground of suppression of material facts. G.A. No. 3713 of 2008

(2.) Counsel for the applicant submits that transposition of the plaintiff No. 2 as defendant No. 9 is necessary as the defendant No. 2 is selling properties by treating the properties of the partnership as his own and retaining sums to himself. The family settlement has been relied on by the plaintiff No. 2 showing therein properties given to his son and construction made thereon. Steps have been taken for cancellation of document. Suits have been filed by the plaintiff No. 2 without authorisation and compromise filed therein. Therefore, steps have been taken for cancelling the said suit and compromise. The order passed by K. J. Sengupta, J. on 7th July, 1999 is based on the decision reported in AIR 1972 Supreme Court 1181. It nowhere mentioned in the said order that the suit has been abated although in spite of service of the writ of summons on the defendant No. 1 no written statement was filed nor did the defendant No. 1 enter appearance. Therefore he could not have disputed the decree that may have been passed against him. In his deposition in suit No. 385 of 1961 the defendant No. 1 said that he has no interest in the suit property, therefore, his right would not be effected. In view of Order 22 Rule 4(3) of the Civil Procedure Code in case no application is made under sub rule 1 the suit shall abate as against the deceased defendant alone and the right to sue survives against the legal WBLR-64 heir and representative of the defendant No. 1 who ought to have been brought on record. In any event in the application on which the order dated 7th July, 1999 was passed was in respect of bringing on record the legal heir and representative of the defendant No. 3 which was within the period of limitation. By not allowing the said heirs to be brought on record an error was committed. Reliance is placed on AIR 1964 SC 215, AIR 1964 SC 234, AIR 1940 SC 215, AIR 2004 SC 394, (2001)2 KLT 307 and AIR 2009 SCW 3189. C.S. No. 471 of 1953 is a partition suit and the order dated 9th January, 2008 has rightly recorded the said fact, therefore, the order dated 9th January 2008 is in order and as the amendment ejected could not be carried out within the time specified for reasons out in the petition time to carry out the amendment be extended.

(3.) Counsel for the plaintiff No. 2 opposes G.A. No. 3713 of 2008 and supports G.A. No. 1519 of 2009 and submits that the order dated 7th July, 1999 was not disclosed on 9th January, 2008 and, therefore, the order was passed. An appeal filed from the order dated 7th July, 1999 was dismissed. The order dated 9th January, 2008 could not have been passed as C.S. No. 471 of 1953 abated. The application was filed in February 1999 to record the death of the respondent Nos. 1 and 3b. The basis for such application was the death of the respondent No. 1 in 1995 knowledge whereof was in 1999 while the respondent No. 3b died on 2nd December, 1998. The only order that was passed on 7th July, 1999 was recording the death of the two defendants and the application was dismissed without condoning the delay or setting aside the abatement. An appeal though filed from the order dated 7th July, 1999 was also dismissed. In the appeal the ground taken was that the substitution of the legal and representative of the defendant No. 3b ought to have been allowed as the application was filed within the period of limitation. It was also contended that in view of the decision reported in AIR 1972 Supreme Court 1181 the suit could not have abated as no preliminary decree had been passed. In the plaint the plaintiff sought a declaration that the partnership business stood dissolved and for accounts. Although settlement of share distribution was sought, no partition was sought. Reliance is placed in AIR 1983 Supreme Court 676 and (1994)1 SCC 1. Order 22 has no application as an application was filed. An application though filed for setting aside the abatement, the same was disallowed for the reason set out in the order dated 7th July, 1999. In view of suppression of material facts and as held in (1994)1 SCC 1 fraud vitiates all, the order dated 9th January, 2008 on account of suppression must be recalled. AIR 2004 SC 394 is distinguishable on facts as it was a case under Order 22 Rule 4(3) of the Code of Civil Procedure.