The words and their technical sense prevailing in the Hindu law : High Court Of Calcutta
The words “survives” and “surviving” have not been used in the technical sense of survivorship prevailing in the Hindu law. The expression “the right to sue survives to surviving plaintiff or plaintiffs alone or against the surviving defendant or defendants alone” , means that the right to sue is transmitted or passes to the plaintiff or plaintiffs alone or against the defendant or defendants alone who are already on the record by the succession, inheritance or otherwise, is upheld by the hig( court of Calcutta, by the learned bench of The Honourable Justice Subrata Talukdar, in the case of Dinabandhu Mondal and others V. Jawed Shakti and Anr., C.O. 780 of 2014.
The petitioners are plaintiffs in Ejectment Suit No. 08 of 2007 and claim to be the trustees of Kumar Promothonath Roy Public Charitable Trust (hereinafter referred to for short as the said Trust). The said Trust is the proprietor of the premises No. 4, Grant Street and 9, Lenin Sarani, Kolkata (for short the suit premises).
The object of the Trust is to do charitable works qua poor and needy persons. The opposite parties are the defendants in the suit and were inducted as tenants to the said premises. The tenancy having been determined by a notice to quit and vacate dated 21st August, 2006 and the defendants-tenants having failed and neglected to vacate the suit premises, the petitioners-plaintiffs filed Ejectment Suit No. 7 of 2008 (hereinafter referred to as the said suit).
Sri Dasgupta submits that the evidence in the suit stood completed and the said suit was fixed for final arguments on 10th February, 2015. On 15th December, 2015, the plaintiff no.1, one Sri Anil Kumar Sen, a trustee of the said Trust expired. Accordingly, the Ld. Advocate for the plaintiffs intimated the death of the plaintiff no.1 by way of a report accompanied by the death certificate to the Ld. Trial Court as required under Order 22 Rule 10A CPC.
Sri Dasgupta further argues that under the provisions of Order 22 Rule 2 CPC the Ld. Trial Court upon intimation of the death of a plaintiff and, where the right to sue survived on the surviving plaintiffs alone, was required to cause an entry to such effect in the records and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs against the surviving defendant or defendants.
The court submits that the said Trust is sui juris. Even in the absence of any of the plaintiffs-trustees the said Trust could maintain a suit on its own. Arguing that further steps directed to be taken by the Ld. Trial Court is not the procedure mandated by Order 22 Rule 2 CPC, the court points out that when the right to sue survives on the remaining plaintiffs, the only requirement is to proceed on the basis of an entry in the record. The court further submits that it is in the domain of the said Trust and the other trustees to co-opt new trustees and such co- opted new trustees can always be added as party plaintiffs to the suit, if necessary.
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Judgement reviewed by – Rani Banerjee