- (1.) This application is directed against the order dated January 5, 2004 passed by the learned Civil Judge (Junior Division), 5th Court, Howrah in Title Suit No.206 of 1995 thereby rejecting the application under Order 22 Rule 4(4) of the C.P.C. and allowing the application dated July 24, 2003 thereby abating the said suit.
(2.) The plaintiff / petitioner herein instituted a suit being Title Suit No.206 of 1995 against the opposite party and another for eviction of licensees from the premises in suit as described in the schedule of the plaint before the learned Civil Judge (Junior Division), 5th Court, Howrah. The opposite party is contesting the said suit by filing a written statement. Summons was duly served upon the defendant no.2. Thereafter, the defendant no.2 entered appearance in the suit. But he did not take any step subsequently. Nor did he file any written statement. As such, the suit was heard ex parte against him. During the pendency of the suit, the defendant no.2 died and the plaintiff prayed for exemption from substituting the heirs of the deceased defendant no.2. That application was rejected by the impugned order. By the same order, the learned Trial Judge has also allowed the application of the defendant no.1 praying for abatement of the suit. Being aggrieved by such order, the plaintiff has preferred this revisional application.
(3.) Now, the following questions have arisen for decision in this revisional application:- i) Whether the learned Trial Judge was justified in rejecting the application under Order 22 Rule 4(4) of the C.P.C. ii) Whether the learned Trial Judge was justified in allowing the application of the defendant no.1 praying for abatement of the suit. Upon hearing the learned counsel for the parties and on going through the materials on record, I find that the defendant no.2 died on January 5, 2002, that is, during pendency of the said suit. There is no dispute that summons was served upon the defendant no.2 and he entered appearance, but he did not contest the suit afterwards. It is not in dispute that the plaintiff has sought for a decree for recovery of possession against the licensees.;