HARISH TANDON, J. - (1.) THIS revisional application is directed against an order no. 277 dated 3.12.2009 passed by the 2nd Additional Civil Judge (Junior Division) Diamond Harbour, in Title Suit No. 55 of 1999 by which an application under section 151 of the Code of Civil Procedure is allowed.
(2.) THIS is a suit for declaration of title and permanent injunction. During the pendency of the suit several defendants died including the defendant no. 21. The trial court fixed a date for disposal of all the applications which were filed by the plaintiff/opposite party on the death of the several defendants. The trial court allowed all the applications excepting the application for substitution of the legal heirs of the deceased defendant no. 1. Consequent thereupon, the trial court recorded the abatement of the suit as a whole. Subsequently the plaintiff filed an application under section 151 of the Code praying for reconsideration of an order by which the application for substitution of the legal heirs of he deceased defendant no. 21 was rejected. The said application is allowed by the trial court and the order is assailed in this revisional application. Mr. Sandip Kumar Das, learned Advocate appearing for the petitioner assailed the said order in contending that there is no provision for reconsideration and the trial court ought to have rejected the application on such score. It is further contended that if there is a specific provision contained in the Code of Civil Procedure the power under section 151 of the Code should not be exercised by the trial court by placing reliance upon a judgment of the supreme court in case of Nain Singh Vs. Koonwarjee & Ors. reported in AIR 1970 SC 997. It is further contended that the order recording the abatement of the suit as a whole amounts to a decree and is appealable one and relies upon an unreported judgment of this court dated 13th March 2002 in case of Smt. Utpala Sen Vs. Sri Pradip Bera & Ors. C.O 586 of 2010.
(3.) MR. Susanta Kumar Mukherjee, learned Advocate appearing for the opposite party submits that the application for substitution was filed within time but the said application could not be traced in the record and as such the subsequent application was filed which was dismissed by the trial court. Subsequently the said application is found and as such the litigant should not suffer by mistake of the court. Having considered the respective submissions made at the bar, the point which emerges whether the court can reconsider its order in exercise of power under section 151 of the Code. The trial court has categorically found that there is no reason to disbelieve the statement that an application for substitution was filed by the plaintiff/opposite party within the statutory period upon the death of the defendant no. 21. A copy of the said application for substitution which was filed within time was annexed by the plaintiff/opposite party in the said application under section 151 of the Code. This court while entertaining the revisional application passed direction for calling the lower court records and on arrival of the lower court records this court finds that certain pages of the ordersheets were torn and damage. The trial court have proceeded to believe the statement of the plaintiff/opposite party on the basis of copy of the said application being annexed to an application for reconsideration that the application was in fact filed within the statutory period upon the death of the defendant no. 21. Such finding cannot be said to be perverse being contrary to the record. The petitioner also could not produce any evidence that an application for substitution as claimed by the plaintiff/opposite party to have been filed within time, was not filed at all. If the trial court is of the firm opinion that the said application was in fact on record and could not be found out at the time of dismissing the later application, then upon subsequent detection, the court is empowered to reconsider the said order in exercise of the inherent power.;