MC(CRP)/4/2024 of ANTARIKSH KALITA Vs THE DEPUTY COMMISSIONER, EAST KHASI HILLS DISTRICTAND ANR. on 21 October 2024

ORDER

1. In a pending matter before this Court wherein, Shri RanabirChoudhury, the respondent No. 2 herein had preferred a revision petitionbeing aggrieved by an order dated 17.12.2014, passed by the MeghalayaBoard of Revenue in MBR/RA No. 2 of 2013. In such revision petition,Smti. Prabhashini Dutta was also impleaded as respondent No. 1 withthe Deputy Commissioner (Revenue), East Khasi Hills District, Shillongas the respondent No. 2.

2. The revision petition numbered as CRP. No. 2 of 2015 hasproceeded in its usual course, when this Court was informed of the deathof Smti. Prabhashini Dutta. On submission made by the learned Sr.counsel for the petitioner that since, no relief is sought for as against thedeceased respondent No. 1 (in the main revision petition), this Court onprayer made, vide order dated 25.07.2023, had accordingly struck off thename of the deceased respondent No. 1 from the proceedings.

3. However, Ms. P. Bhattacharjee, learned counsel has soughtfor leave to file an appropriate application in order to bring the legal heirand representatives of the deceased respondent No. 1 in place of the deceased respondent No. 1 so as to contest the proceedings before thisCourt. Such prayer being allowed, an application registered as MC(CRP)No. 4 of 2024 was accordingly filed, the same being taken up herewithfor consideration.

4. Heard Ms. P. Bhattacharjee, learned counsel for the applicant,who has submitted that this Court vide order dated 25.07.2023 hadstruck off the name of the respondent No. 1 in the main petition on herdeath. However, since the time of her death on 22.02.2019, her sonBishwanath Dutta was pursuing the proceedings in the matter. But, hetoo expired on 13.01.2024 and due to the communication gap betweenthe parties and the counsels, necessary steps for substitution of thedeceased respondent No.1 could not be done so.

5. The learned counsel has further submitted that since the legalheir of the deceased Prabhashini Dutta has also expired, the remaininglegal heirs have now issued necessary no objection to allow the presentapplicant to be impleaded in the case as party respondent in substitutionof the original deceased respondent.

6. Under the circumstances as is evident in the case herein, thelearned counsel has submitted that the applicant has now approached this Court with this instant application made under Order 1 Rule 10 (2)of the Code of Civil Procedure for impleadment of the applicant as aparty herein.

7. In support of this contention, the learned counsel has referred to the case of Puran Singh & Ors v. State of Punjab & Ors reported in AIR 1996 (SC), 1092 para 10 which reads as follows.

“10.As such even if it is held that Order 22 of the Code isnot applicable to writ proceedings or writ appeals, it doesnot mean that the petitioner or the appellant in such writpetition or writ appeal can ignore the death of therespondent if the right to pursue remedy even after death ofthe respondent survives…”

8. Per contra, Mr. K. Paul, learned Sr. counsel appearing for the

respondent No. 2 herein, who is the petitioner in the main revisionpetition, while opposing the contention of the applicant has submittedthat the prayer in this application would show that the applicant hassought for being impleaded as a party respondent in the mainproceedings and additionally, for the order dated 25.07.2023 to bevacated. However, the applicant has failed to submit pleadings as to whyhe should be impleaded and also as to how he is a necessary party to theproceedings.

9. Taking this Court to the order dated 25.07.2023, the learnedSr. counsel has submitted that by such order, this Court has rightly struckoff the name of the deceased respondent No.1 (in the main revisionpetition) from the proceedings since in the order impugned by therespondent No. 2 herein, that is, the order dated 17.12.2013 passed bythe Meghalaya Board of Revenue, no substantive right of the deceasedrespondent No. 1 was infringed, the impugned order being negativelydirected only against the respondent No. 2 herein. Therefore, being thecomplainant who has initiated the said proceedings culminating in thepassing of the said impugned order, the applicant herein has not beenable to state as to how his rights have been affected. Without anypleadings as to how the passing of the said order dated 25.07.2023 hascaused prejudice to him, the applicant having asserted that this is not anapplication seeking substitution of the deceased respondent No. 1, thisapplication is liable to be dismissed as not maintainable.

10. The learned Sr. counsel has again submitted that the prayer ofthe applicant to be impleaded as a party to these proceedings relying onthe provision of Order 1 Rule 10 (2) CPC, has no basis as he is not at allinvolved in the lis between the parties since its inception, he could therefore not be considered as a proper or necessary party. If he couldassert any right at all, it can only be on behalf of the deceasedrespondent and that too, by way of substitution for which he has toapproach this Court under the relevant provision of the Code of CivilProcedure, particularly, under Order XXII Rule 4.

11. This Court on consideration of the submission made, isaware that the instant application is two-fold in its approach, the firstbeing the prayer for impleadment of the applicant herein as a necessaryparty in the revision and the second, being the recall of the order dated25.07.2023, wherein the name of the deceased respondent No. 1 thereinwas struck off from the proceedings, thus, not necessitating any legalheir to be substituted in her place.

12. A perusal of the petition under consideration, would showthat the applicant has asserted that he is the Attorney Holder andgrandson of Late Prabhashini Dutta, the deceased respondent No. 1 inthe main revision petition. Thereafter, the date of death of the saiddeceased respondent No. 1 was given as 22.02.2019. Again, theapplicant has further stated that after the death of the deceasedrespondent No. 1, her son who was the Attorney Holder had been pursuing the case of the parties. However, he too has since expired on13.01.2024.

13. It is the further submission of the applicant that there was acommunication gap between the parties and the counsels resulting in thisCourt passing the order dated 25.07.2023, where effectively, the name ofthe deceased respondent No. 1 was struck off from these proceedings.The applicant went on to state that now, the legal heirs of the deceasedrespondent No. 1 have executed respective power of attorney in hisfavour to pursue this matter, and as such, this application is now filedwith a prayer to implead the applicant as party respondent and also forthe order dated 25.07.2023 to be vacated.

14. At the outset, the learned counsel for the applicant hasmaintained that this is an application seeking impleadment in terms ofthe provision of Order I Rule 10 (2) of the Code of Civil Procedure andis not an application for substitution in place of the deceased respondent.

15. It may not be out of place to reproduce the provision cited bythe learned counsel that is, Order 1 Rule 10 (2) which reads as follows:

“ORDER 1PARTIES TO SUITS

10(2). Court may strike out or add parties. – The Courtmay at any stage of the proceedings, either upon or without theapplication of either party, and on such terms as may appear to theCourt to be just, order that the name of any party improperlyjoined, whether as plaintiff or defendant, be struck out, and thatthe name of any person who ought to have been joined, whetheras plaintiffs or defendant, or whose presence before the Court maybe necessary in order to enable the Court effectually andcompletely to adjudicate upon and settle all the questions involvedin the suit, be added.”

16. There are a number of interpretations as to who is a proper and necessary party who is required to be impleaded or struck off from aproceeding before the Court. The Hon’ble Supreme Court in the case of Vidur Impex and Traders Private Limited & Ors v. Tosh Apartments Private Limited & Ors reported in (2012) 8 SCC 384 at para 41.1, 41.2,41.3 and 41.4 has observed as follows:

“41.1. The Court can, at any stage of the proceedings,either on an application made by the parties or otherwise,direct impleadment of any person as party, who ought tohave been joined as plaintiff or defendant or whosepresence before the court is necessary for effective andcomplete adjudication of the issues involved in the suit.

41.2. A necessary party is the person who ought to bejoined as party to the suit and in whose absence aneffective decree cannot be passed by the court.

41.3. A proper party is a person whose presence wouldenable the court to completely, effectively and properlyadjudicate upon all matters and issues, though he may notbe a person in favour of or against whom a decree is to bemade.

41.4. If a person is not found to be a proper or necessaryparty, the court does not have the jurisdiction to order hisimpleadment against the wishes of the plaintiff.”

17. The learned counsel for the applicant in course of herargument, had stressed on the fact that the applicant being the legalrepresentative as well as the legal heir of the deceased respondent, he isaccordingly the best person to step into the shoes of such deceasedrespondent, and as such, if not impleaded in these proceedings, the rightsof the deceased respondent would stand extinguish without dueprocedure of law. It is therefore necessary that the said order dated25.07.2023 be vacated.

18. It is not understood as to how the applicant can intervene inthe lis between the parties since apart from a bare assertion that he is thelegal heir of the deceased respondent deriving his authority on thestrength of the said power of attorney executed by the so called legalheirs of the said deceased respondent, this fact not having beenestablished, since it would stand to reason that the legal heirs of thedeceased ought to have appeared before this Court as principal legalrepresentatives of the said deceased and thereafter, in order to pursue thematter, they would then authorized the applicant herein to represent them. This process has never been followed, and as such, the applicanthas not been able to prove his bonafide as far as his right and interest inthe matter under consideration is concerned.

19. Even so, since the applicant claiming to be the legal heir of the deceased respondent and therefore, is the best person to pursue thematter, the approach before this Court ought not to have been under theprovision of Order 1 Rule 10 (2) CPC, but should have been one underOrder XXII Rule 4 (1) which reads as follows:

“ORDER XXII

DEATH, MARRIAGE AND INSOLVENCY OF PARTIES

4. Procedure in case of death of one of several defendants or ofsole defendant. – (1) Where one of two or more defendants dies and theright to sue does not survive against the surviving defendant ordefendants alone, or a sole defendant or sole surviving defendant diesand the right to sue survives, the Court, on an application made in thatbehalf, shall cause the legal representative of the deceased defendant tobe made a party and shall proceed with the suit.”

20. However, the factual aspect of the matter is that the deceased respondent had expired on 22.02.2019, the matter is said to have beendiligently pursued by her son Late Bishwanath Dutta, who was still alivein the year 2019. Upon the death of the deceased respondent, anapplication by her legal representatives to be made a party and toproceed in the proceedings ought to have been filed, however, there is nothing on record to show that Bishwanath Dutta has ever entered theseproceedings to succeed his deceased mother, the deceased respondentNo. 1. In view thereof, the provision of Order XXII Rule 4 (3) whichprovides for a limitation period, being the prescribed period of threeyears from the date of death of the party to enable an application forsubstitution in place of the deceased plaintiff or defendant to be filed,would certainly apply to the case of the parties herein, the same beingfound wanting.

21. Since the applicant has not pressed for substitution in placeof the deceased respondent, but has insisted on being impleaded as aproper and necessary party, no credence or good grounds or even legalgrounds being shown to convince this Court to allow such prayer, theprayer in this regard cannot be entertained in the form and manner inwhich it was presented.

22. Again, as to the prayer to vacate the order dated 25.07.2023,as has been argued by the learned Sr. counsel for the respondent No. 2herein, the applicant has not been able to point out the reasons as to whythe said order is to be vacated, vis-à-vis, the infirmity or illegalitythereof, this Court has no basis to allow the prayer in this regard. It may

be reminded that the said order was passed on the prayer of thepetitioner therein, who is the dominus litis and the same was passed on aprima facie observation made by this Court on the assumption that norelief is sought for or claimed as against the deceased respondent No. 1.In view of the provision under Order XXII Rule 4, it is incumbent uponthe plaintiff/petitioner to bring the legal heirs or representatives of adeceased defendant/respondent on record, it would be open to the partiesto agitate this issue before the proper forum.

23. The authorities cited by the learned counsel for the applicantwould not be applicable to the case in hand, and as such, no detaileddiscussion is necessary to be made in this regard.

24. Mr. S. Sengupta, learned Addl. Sr. GA appearing for the Staterespondent No. 1 has submitted that no argument will be advanced onbehalf of the said respondent.

Mr. S. Sengupta, learned Addl. Sr. GA appearing for the State

25. In view of the above observations, this Court finds that theapplicant has not been able to make out a case either for impleadment asparty respondent in the related proceedings or for vacation of the saidorder dated 25.07.2023. This application is therefore dismissed asdevoid of merits.

26. Application disposed of.

Judge