MINATI DUTTA Vs. SUSHIL CHAUDHARY

JUDGEMENT

(1.) Heard Mr. Amarendra Narayan for the appellants, and Mr. Durga Nand Jha for the respondents. This appeal is directed against the order dated 14-10-1999, passed by the learned 4th Additional District Judge, Darbhanga, in Eviction Appeal No. 3 of 1993/4 of 1999 (Ranen Dutta v. Sushil Choudhaiy), whereby the appeal has been held to have abated on account of non-substitution of the heirs of the appellants before him.

(2.) This litigation has a chequered history. Appellant No. 1 herein is the wife of late Ranen Dutta, and appellant Nos. 2 to 8 are their sons and daughters. In other words, they claim to be the heirs and legal representatives of the deceased. One Satindra Natha Majumdar had alienated the suit property by a deed of absolute sale registered on 12-3-1981 in favour of the respondent (Sushil Choudhary). The said Ranen Dutta was a tenant in the suit property from before. Thereafter Ranen Dutta filed Title Suit No. 67 of 1981 for specific performance of contract against Satindra Nath Majumdar before the learned sub-ordinate Judge at Darbhanga. The present respondent was a party to the suit. According to the plaint, Ranen Dutta pleaded that Satendra Nath Majumdar had agreed to alienate the suit property absolutely in favour of the plaintiff and for which a sum of Rs. 10,000/- (Ten thousand) had already been handed over towards part payment of the consideration money. No prayer had been made for setting aside the registered deed of absolute sale in favour of Sushil Choudhary. During the pendency of the said suit, Sushil Choudhary instituted Money Suit No. 25 of 1982 for recovery of the consideration money, which was dismissed by the judgment dated 16-3-1989 and became final. The said Title Suit No. 87 of 1981 has been dismissed by judgment and decree dated 10-7-2002, and the heirs of Ranen Dutta have preferred Title Appeal No. 23 of 2002 in the Court of learned District Judge, Darbhanga. In the meanwhile, Sushil Choudhary instituted eviction suit No. 26 of 1989 for eviction of Ranen Dutta from the suit property. The suit was decreed by judgment dated 30-3-1993, whereafter Ranen Dutta filed Eviction Appeal No. 3 of 1993 before the learned District Judge, Darbhanga. During the pendency of the appeal, Ranen Dutta died on 30-6-1998. It is relevant to state that Title Suit No. 67 of 1981 and Title Appeal No. 3 of 1993, both at the instance of Ranen Dutta, were pending. The heirs of Ranen Dutta took steps for substitution of the heirs in Title Suit No. 67 of 1981 which was allowed, the name of the deceased was expunged and his heirs were substituted. No such step was taken in Eviction Appeal No. 3 of 1993. Five of the eight heirs of Ranen Dutta ultimately filed an application under Order 1, Rule 10 of the Code of Civil Procedure (hereinafter referred to as the 'CPC') on 5-5-1999 in Eviction Appeal No. 3 of 1993, which has been rejected by the impugned order, inter alia, on the ground that, in the facts and circumstances of the case, the application under Order 1, Rule 10, CPC was not maintainable. It has, therefore, been held that Eviction Appeal No. 3 of 1993 had abated on account of non-substitution of the heirs. Hence this appeal at the instance of the heirs of Ranen Dutta.

(3.) While assailing the validity of the impugned order, learned counsel for the appellants, who are the heirs of late Ranen Dutta, submits that procedure is the handmaid of justice and its rigors cannot be allowed to defeat the cause of justice. He relies on the following judgments of the Calcutta High Court : (i) (1951) 55 Cal WN 402 (Associated Bank of Tripura v. Bishnu Pada Chakravarty). (ii) AIR 1983 SC 355 (Bhagwan Swaroop v. Mool Chand). 3.1 He next submits that the inadvertent mistake on the part of the heirs in filing the application under Order 1, Rule 10(2), CPC should have been taken sympathetically, adopting a liberal approach. In his submission, the learned Court of appeal below ought to have examined whether or not the delay in filing the application had been really explained. He relies on the following reported judgments : (i) AIR 1989 Punjab and Haryana 48 (Jogdarshan v. Leela Devi). (ii) AIR 1981 Orissa 126, para 7 (Gadachandi Thakurani v. Udi Bank). 3.2 He next submits that the first appeal is a matter of right and is a court of facts. He next submits that the pendente-lite development should now be taken into consideration, namely the appellants' parallel appeal in Title Appeal No. 23 of 2002, is now pending before the learned District Judge, Darbhanga.