JANAKINATH SEN Vs. AUSTIN DISTRIBUTORS PVT LTD

JUDGEMENT

(1.) The instant application is at the instance of plaintiff / appellants in the connected Second Appeal, which is directed against a judgment of reversal, dismissing the plaintiff's suit for recovery of possession of the suit premises, inter alia, on the ground of expiry of the lease in favour of the respondent No. 1. From the records it appears that during the pendency of the appeal an application for transposition from the category of appellants to the category of respondents had been filed on 29th of May, 1984 by Sambhu Nath Seal, Raghunath Dhar and Biswanath Dhar, who were appellants Nos. 9 to 11 respectively. During the pendency of the said application, appellant No. 9, Sambhu Nath Seal, died on 14th July, 1984, leaving behind him surviving opposite party No. 4, Smt. Rekha Dutta, daughter, Smt. Rai Sundari Seal, the surviving mother of the said Sambhu Nath Seal and his widow Smt. Lokshmi Sona Seal (the widow having died subsequently). By an order dated 23rd of July, 1984 the said application was disposed by transposing appellants Nos. 10 and 11 to the category of respondents only on the ground that they were not willing to proceed with the appeal as appellants and in the said order the fact of death of appellant No. 9 Sambhu Nath Seal, was also recorded. It is pertinent to note, at this stage, that in spite of knowledge of such death of appellant No. 9, no step for substitution of his heirs and legal representatives had been taken on behalf of the surviving appellants. When the appeal appeared before a Division Bench of this Court for hearing on 8th of July, 1988, an objection was taken by the learned advocate for the respondent No. 1 to the effect that due to such non-substitution, the entire appeal had abated. The instant application for substitution was filed thereafter on 22nd of July, 1988. In the said application a prayer for substitution on setting aside abatement condonation of the delay was made and it was averred that the default in making the said application was due to the advice given by the learned advocate for the petitioners on record, Mr. Nirmal Kumar Nandi, that it was not necessary to file any application for substitution. A supplementary affidavit was subsequently filed, inter alia, pleading that the name of the other heir Smt. Rai Sundari Seal having not been known to the petitioner earlier, she also be substituted along with Rekha Dutta as an heir to the deceased appellant Sambhu Nath Seal.

(2.) From the submissions made by Mr. Hari Narayan Mukherjee, ill support of the applicantion, and Mr. Sudhis Dasgupta, on behalf of the respondent/opposite party No. 1, two points arise for our consideration, namely, whether a substitution is at all necessary and secondly, if it is necessary whether the delay in praying for the same should be condoned.

(3.) It is admitted that the deceased appellant Sambhu Nath Seal had one-sixth share in the suit property and was a co-owner to that extent. Notwithstanding non-demarcation of such share physically the existence of his interest independently of the interest of the other co-owners renders the substitution necessary. Right to sue which means right to get relief cannot be said to have passed on his death to the surviving appellants. The disposal of the appeal in the absence of the deceased appellant could not have binding effect on his interest and as such could not be complete and effective adjudication. Substitution is, accordingly, necessary and failure on the part of the surviving appellants to substitute within the statutory period has, therefore, result in abatement of the appeal in its entirety. Mr. Mukherjee's reliance on the provisions of Order 41 Rule 33 of the Code of Civil Procedure cannot be effective as to by-pass such abatement. In the instant case, therefore, we must answer the first point in favour of the respondent No. 1.