- (1.) This revisional application is directed against Order No. 29 dated 17th March, 1993 passed by the learned Second Bench of the City Civil Court at Calcutta in Title Suit No. 897 of 1990.
(2.) The facts necessary for the purpose of this revisional application are as follows:- The plaintiff filed the suit against the predecessor-in-interest of the present petitioner for termination of the lease which had expired due to efflux of time. During the pendency of the suit, the original lessee, i.e., the predecessor-in-interest of the present petitioner, died on 31.12.91 and the fact of such death of the sole defendant in that suit was brought to the notice of the learned Advocate for the opposite party by the learned Advocate for the deceased defendant under Order 22 Rule 10(a) of the Code of Civil Procedure on 9.1.92. The Court, by its order dated 9.1.92, directed the landlord - opposite party to take necessary steps in the matter. By the impugned order No. 29 dated 17.9.93 the application filed by the opposite party-landlord under order 22 Rule 4 of the Code of Civil Procedure on 1.3.93 was allowed by the learned Trial Judge on the ground that the petitioner has appeared before the Court in response to the publication made in the newspaper "The Statesman" on 9.8.92.
(3.) Mr. D.K. Dhar, learned Advocate for the petitioner, submits that the learned trial Judge acted beyond his jurisdiction in allowing the application under Order 22 Rule 4 of the Code of Civil Procedure inasmuch as he did not take into consideration that the suit had already abated on the expiry of the three months after the death of the original defendant, who, admittedly died on 31.12.91 He also pointed out that no step having been taken also under Order 22 Rule 9 of the Code of Civil Procedure for setting aside the abatement of the orders passed by the learned trial Judge after the expiry of the time for filing the application or abatement was illegal and is of no effect. He further contended that no doubt his client appeared before the Court by filing Vakaiatnama and asking the plaintiff to supply a copy of the plaint as will appear from Order 22 dated 14.9.92. But that conduct, according to him, shall not enure to any benefit to the opposite party-landlord in view of the fact that the suit having already abated on the expiry of 31.3.92 the question of subsequent appearance by the petitioner does not change the position in any way. The learned Advocate for the petitioner further contended that the petition under Order 22 Rule 4 of the Code of Civil Procedure cannot also be considered as a petition under Order 22 Rule 4 C.P. Code in the facts and circumstances of the case.;