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There had been collusion in suppressing the death information of deceased: Calcutta High Court

It seemed that the petitioner could not make his supplication out of this petition. Thus, not finding any merit in the revisional application, whereof such application was proclaimed dismissed. The Hon’ble High Court at Calcutta before the Hon’ble Justice Subhasis Dasgupta held such an opinion in the matter of  Sk. Asfar Ali & Ors. Vs. Sk. Asgar Ali [CO. No. 1322 of 2021].

According to the case facts, the learned Civil Judge (Senior Division), Additional Court, Hooghly had passed the impugned order No. 37 dated 26th March 2021 in Misc. Case No. 20 of 2019 arising out of Title Suit No. 370 of 2018, ordering the petitioners/opposite parties to issue information regarding the names and addresses of legal heirs of deceased defendant No.7/opposite party No.7. Afterward, the rejected prayer of the petitioners dated 10.12.2020, under 151 of the Code of Civil Procedure, for recording the abatement, as against defendant No.7/opposite party No.7, who left this world on 14.05.2018, is subject of challenge in this revisional application. 

Eventually, Original Title Suit No. 88 of 2014, was transferred and renumbered as Title Suit No. 370 of 2018, was dismissed for default by order dated 04.04.2019. The restoration of the suit sought opposite party/plaintiff registered Misc. Case No. 20 of 2019 under Order IX Rule 9 of the Code of Civil Procedure. 

The interconnection with Misc. Case, the opposite party Nos. 1 to 6 filed a petition dated 10.12.2020, sought the recorded order against defendant No.7/opposite party No.7, namely Sri Mandan Baul Das, who died on 14.05.2018, on the ground that legal heirs of the said defendant (No.7/opposite party No.7), could not be substituted by resorting to the provisions available for substitution within the time provided under the law.

Learned advocate, Mr. Bhudeb Chatterjee, representing the petitioners/defendants/opposite parties submitted that the Court had automatically rejected their prayer for recording the abatement order, against the defendant No.7/opposite party No.7, and thereafter illegally directing petitioners to issue information regarding the names and addresses of legal heirs of deceased defendant No.7/oppsoite party No.7. 

Mr. Chatterjee urged that under the instructions of an order under Order XXII Rule 10A of the Code of Civil Procedure petitioners could not be forced to furnish the names and addresses of legal heirs, left by deceased defendant No.7/opposite party No.7, and it was highly illegal having no consent of the law. Incidentally, Mr. Chatterjee referred the Vakalatnama, that there was a change of brief, wherein the previously learned advocate appeared in the Court below for deceased defendant No.7/opposite party No.7, furnished a recourse in Vakalatnama. Therefore, the learned advocate, appointed for petitioners/opposite party Nos. 1 to 6, could not be compelled to furnish the required information, about the legal heirs.

The learned advocate representing the opposite party/plaintiff, Mr. Sounak Bhattacharya, submitted that there had been a collusion in suppressing the death information of expired defendant No.7, which could be easily understood upon visualising the cremation/burial certificate, issued by petitioners/opposite party Nos. 1 to 6 in the Court below. Further, Mr. Bhattacharya contended that the original suit was for declaration and partition. Mr. Bhattacharya also stated that the required death information neither could be furnished by the learned advocate representing the deceased defendant No.7 in the court below nor by the opposite party Nos. 1 to 6/defendants, or their learned advocates for taking effective steps as regards the substitution of legal heirs, left by deceased defendant No.7/opposite party No.7.

Advancing more to the case, Mr. Bhattachaya stated “ information of deceased defendant No.7 was deliberately suppressed thereby preventing the plaintiff/opposite parties from taking appropriate steps simply to avoid future complication”.

The Hon’ble High Court at Calcutta stated that the inclusion of Order XXII Rule 10A of the Code of Civil Procedure, it is the duty of a learned advocate to communicate to the Court.

The relevant provisions mentioned hereinabove may be mentioned hereinbelow- “10A. Duty of pleader to communicate to Court death of a party. – Whenever a pleader appearing for a party to the suit comes to know of the death of that party, he shall inform the Court about it, and the Court shall thereupon give notice of such death to the other party, and, for this purpose, the contract between the pleader and the deceased party shall be deemed to subsist.”

In order XXII Rule 10A there is neither any uncertainty nor any complexity in its “words”. The information of the death on account of such disputes should have been furnished to the Court, the opposite party/plaintiff was required to act on account of the death of deceased defendant No.7.

After inspection of such impugned order, it seemed that deceased defendant No.7 filed his written statement on 19th September 2014, and stated the purchase of some portion of the suit property along with his three brothers. Mr. Madan Baul Das/defendant No.7 departed this world on 14.08.2018. The said deceased person’s death information neither could be furnished by the learned advocate representing the deceased/defendant No.7 nor by any one of the defendants having gathered such information at any followed stage. 

Therefore, in all the discussions hereinabove, it appears that the opposite party/plaintiff was prevented due to ample causes did not take any proper causes for substitution. After the consideration of the entire information and facts available in the case record, the Hon’ble Court rejected the prayer for recording the abatement order, as against deceased defendant No.7/opposite party No.7. Therefore, the petitioners/opposite party Nos.1 to 6 was allowed to furnish information regarding names and addresses of legal successors of deceased defendant No.7/opposite party No.7. 

The Hon’ble High Court at Calcutta before the Hon’ble Justice Subhasis Dasgupta considered all these facts and held “The technicalities thus sought to be capitalized by Mr. Chatterjee, learned advocate appearing for the petitioners, in the given context of this case, should not be given precedence, giving a contrary look to the provisions contained in Order XXII Rule 10A of the Code of Civil Procedure. For a little bit change in the circumstances, the imperative obligation to furnish the death information of deceased defendant No.7 should not be interpreted in a manner, other than the purpose actually contemplated under Order XXII Rule 10A of the Code of Civil Procedure.”

The Hon’ble Court was also of the opinion that “The impugned order does not call for any interference. The revisional application fails being without any merits, and accordingly stands dismissed”.

Click here to read the judgment

Judgment reviewed by Bipasha Kundu

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