- (1.) EJECTMENT Suit No.441 of 2002 was instituted by the predecessor-in-interest of the opposite parties 1 to 4 herein for eviction of the original tenant, Sri Bibhuti Bhusan Banerjee and recovery of khas possession of the suit premises. One of the grounds on which eviction of the original tenant was sought is that he had sublet the suit premises in favour of one Ramdas Choudhury (since deceased). On the death of Bibhuti Bhusan Banerjee, his legal heirs were substituted as defendants. The heirs of late Ramdas Choudhury applied for being added as defendants. Their prayer was allowed and they have been contesting the suit.
(2.) DURING progress of the suit, defendant no.1 Smt. Aruna Banerjee died on July 3, 2007 while the defendant no.2 Sri Sekhar Banerjee died on July 18, 2004. The plaintiffs, being the opposite parties 1 to 4 herein, filed an application before the trial Court under Order 1 Rule 10, Code of Civil Procedure (hereafter the Code) alleging that the interest of the defendants 1 and 2 devolved on defendants 3 to 5 who were already on record and, accordingly, a prayer was made for deleting the names of defendants 1 and 2 from the cause title of the plaint. Written objection thereto was filed on behalf of the added defendants, being the petitioners herein. It was claimed therein that the defendant no.1, Smt. Aruna Banerjee died leaving behind her two sons and three daughters as her legal heirs who had not been brought on record and, therefore, the suit must be held to have abated partially. Upon considering the application and the written objection, the trial Court by order No.116 dated March 20, 2010 held as follows : On careful perusal of the materials on record, it reveals that the averments made in the application by the plaintiff u/o 1 Rule 10 impleading the defendant No.6 to defendant No.10 and the information about the death of defendant no.1 as per written examination in chief of defendant No.8 are correct. Regarding the date of death, the defendant No.8 has not given any specific objection, nor the defendant has stated as to who are the legal heirs of the deceased defendant No.1 who are being left out. Moreover, the defendant had not raised any objection regarding defendant No.2s death or substitution of anybody in his place. In that circumstances, this Court finds that the prayer of the plaintiff is justified and bonafide. Hence, it is Ordered. That the application u/o-1 Rule 10 filed by the plaintiff on 8/3/2010 is hereby allowed on contest but without cost. The names of defendant No.1 and 2 are to be deleted from the cause title of the plaint. Note in the register. D.C. to do the needful. To 09.04.2010 for evidence of the defendant. The defendants in the suit did not challenge the aforesaid order dated March 20, 2010 and, consequently, the same attained finality. On December 13, 2010 the added defendants filed two applications. The first one was an application under Order XXII Rule 4(3) of the Code while the other one was an application under 151 of the Code.
(3.) ON December 20, 2010, the plaintiffs had also filed an application. It was claimed therein that upon the death of the defendant no.2, the application filed by the plaintiffs for deleting his name was allowed and, therefore, an order may be passed to the effect that there is no necessity to add and/or substitute the legal heirs of the deceased defendant no.2. All the three applications, as aforesaid, were considered by the trial Court on January 31, 2011 and disposed of by a common order dated February 1, 2011. The trial Court examined the records and came to a conclusion that though the defendants 1 to 5 had entered appearance and on several occasions had prayed for time to file written statement, ultimately, no written statement was filed by them resulting in an order being passed that the suit shall proceed ex parte against them. In view of Order XXII Rule 4(4) of the Code, the trial Court exempted the plaintiffs from the necessity of substituting the legal representatives of the deceased defendants 1 and 2 since during their lifetime they had failed to file their written statement. The trial Court was also of the view that nothing of importance surfaced from the applications filed by the added defendants for substitution of the representatives of the defendants 1 and 2 and proceeded to reject the same on contest. Simultaneously, the application filed by the plaintiffs was allowed and they were permitted to proceed with the suit without substituting the legal representatives of defendants 1 and 2 (since deceased) in view of Order XXII Rule 4(4) of the Code. This order dated February 1, 2011 is under challenge in this application under Article 227 of the Constitution.;