SMT. SALILA KAR Vs. MAYUR RANJAN KAR

JUDGEMENT

(1.) This civil miscellaneous petition arises out of the order dated 20.7.2015 passed by the learned 2nd Additional Civil Judge (Sr. Divn.), Cuttack in C.S. No. 72 of 2010.

(2.) Short background involved in the case is that the opposite party No. 1 as the plaintiff filed a suit seeking declaration of the impugned letter dated 24.5.1999 as an outcome of fraud and forgery, manoeuvred by defendant No. 6 therein and the same is non-est in the eye of law, for the preliminary decree for accounts be passed holding inter alia that the defendant No. 6 is liable to render true and faithful account in respect of the newspaper from 24.5.1999 till the date of filing of the suit, also a decree holding that the defendant No. 6 is liable to pay compensation/damage of Rs. 5,000/- to the plaintiff towards his mental agony, harassment etc. due to fraudulent preparation & misuse of the impugned letters dated 24.5.1999 thereby laying false and lastly for a decree for permanent injunction against the opposite party No. 6 restraining him from representing the newspaper "The Matrubhumi" as its sole owner. Further fact reveals that the opposite party No. 1 as the plaintiff while relying upon the letter dated 24.5.1999 as indicated in the plaint has further mentioned in the plaint that the said letter is to be called for from the defendant No. 6 i.e. the predecessor in interest of these petitioners, the plaintiff-opposite party No. 1 has also pleaded that when he sought for assistance of the defendant including defendant No. 6 to start with the publication of the newspaper being stopped due to the illegal acts of the defendant No. 6 and further misappropriation of its fund with the claim of the defendant No. 6 to be the owner of the newspaper namely "The Matrubhumi" on the strength of such fraudulent letters, the petitioners disputed the letters strongly and submitted that the particular letter is fabricated one and the defendant No. 6 making the false claim to get the lease hold property recorded in his name. Hence, the suit is at the instance of the plaintiff-opposite party No. 1. Facts further reveals that during pendency of the suit, the defendant No. 6 died on 28.2012 leaving behind these petitioners. The plaintiff-opposite party No. 1 prayed for substitution of the legal representative of the deceased defendant No. 6 and accordingly filed an application vide Annexure- The petitioners i.e. the defendant Nos. 6 (a) to 6 (c) being called upon to file their response, filed their response inter alia stating therein that the right to sue does not survive against the legal representatives of the deceased defendant No. 6. For the reasons of relief claimed against the defendant No. 6, the same are all of personal character. Thus, they have all contended that for the death of defendant No. 6, the suit does not survive. It is claimed that the trial Court on failure of his consideration of the stand taken by the petitioners arrived at the wrong and illegal impugned order vide Annexure-4.

(3.) Sri S.K. Dash, learned counsel for the petitioner challenging the impugned order submitted that for the involvement of personal acquisitions involving the allegation of fraud by the particular person and for the death of that particular person, the suit does not survive. Further, the legal heirs of such party having no involvement in such activities, continuance of the suit will also become futile.