JAYANTA KUMAR GHOSH Vs. JADAB BHUNIA

JUDGEMENT

(1.) The impugned Order No. 49 dated 14th Aug., 2018 passed by the learned Civil Judge, Junior Division, 2nd Court at Midnapore, (West) in Title Suit No. 291 of 2010 rejecting the petition dated 04.05.2018 filed by the petitioners/plaintiffs praying for amendment of a pending prayer contained in an application for substitution under Order 22 Rule 4 of the Code of Civil Procedure is the subject matter of challenge in this revisional application.

(2.) The petitioners/plaintiffs instituted a suit being Title Suit No. 291 of 2010 in the Court of learned Civil Judge, Junior Division, 2nd Court at Midnapore, (West) praying for declaration, injunction and recovery of khas possession in respect of 'ka' schedule property mentioned in the plaint against the defendants. The opposite parties/defendants already entered their appearances in the suit, and in order to contest the injunction application as well as the suit, they filed written their statement and written objection for the purpose. Defendant No.3, Shambhu Das, subsequently died during the pendency of the suit on 7th Sept., 2016 leaving behind three legal heirs, who are widow wife, son and daughter respectively.

(3.) The learned advocate appearing for the defendant No.3, in the court below, did not intimate the date of death of defendant No.3 to Court in application of Order 21 Rule 10A of the Code of Civil Procedure for facilitating the plaintiffs/petitioners to take adequate steps for substitution of the legal heirs left by defendant No.3 within the time provided under the law. Somehow petitioners/plaintiffs could learn about the death of defendant No.3 on 4th Jan., 2017, and on the following date i.e. 5th Jan., 2017, the petitioner took out an application under Order 22 Rule 4 of the Code of Civil Procedure, praying for substitution of the heirs and legal representatives of the deceased/defendant No.3 in the suit. Ultimately 4th May 2018, petitioners/plaintiffs filed a separate application under Sec. 151 of the Code of Civil Procedure, praying for amendment in the prayer portion of the application for substitution by adding few words "after setting aside abatement" in the second line of the prayer portion after the work "defendant No.3". The Court below by the impugned order dated 14.08.18 rejected the petition observing that acceptance of the petition dated 04.05.2018, filed by the petitioners/plaintiffs to amend the petition dated 05.01.2017 would impliedly allow the plaintiffs to incorporate two prayers in one petition which were not tenable in law, and further that the plaintiffs/petitioners did not file any application for substitution of deceased defendant No.3, who passed away on 07.09.2016, within the statutory period of limitation, and as such the suit as against defendant No.3 had already abated. It was also observed by the court below that no separate petition was taken out to set aside the abatement under 22 Rule 9 of the Code of Civil Procedure.