- (1.) THIS first appeal is at the instance of the plaintiffs in a suit for specific performance of contract and is directed against the judgment and decree dated 7th February, 1995 passed by the Assistant District Judge, Tenth Court, Alipore, district 24-Parganas (South), in Title Suit No. 73 of 1989 by which the said court dismissed the said suit.
(2.) THE case made out by the appellants may be summed up thus: (a) One Gopendra Prasad Sukul, since deceased, the predecessor-in-interest of the defendant nos. 1 to 5 was the absolute owner of Premises No. 25, panditia Terrace, Calcutta?700 029 who entered into an agreement for sale with the plaintiff no. 1 for sale of the ground floor self-contained flat measuring 1,800 sq. ft. at the price of Rs. 70,000/-after taking an advance of Rs. 10,000/ -. (b) The said Gopendra Prasad Sukul died on 14th October, 1984 leaving him the defendant no. 5 and one Surendra Sukul, his two sons, as his sole heirs and legal representatives. The said Surendra Sukul subsequently died leaving the defendant nos. 1 to 4, 6 and 7 as his legal heirs and representatives. Thus, after the death of Gopendra Prasad Sukul the property devolved upon the defendant nos. 1 to 7. (c) Although the plaintiff no. 1 was all along ready and willing to perform his part of the contract and requested the heirs of late Gopendra Prasad Sukul to complete the transaction, those persons transferred the property in favour of the defendant no. 8 notwithstanding the existence of earlier agreement for sale with the plaintiff no. 1. The plaintiff no. 1 assigned his right in favour of the plaintiff no. 2 as nominee to complete the transaction. (d) The plaintiffs, therefore, filed the suit for specific performance of contract against the defendant nos. 1 to 8. (e) During the pendency of the suit, the defendant no. 5 died but such fact was not known to the plaintiffs, as a result, no application for substitution was filed on the death of the defendant no. 5. After coming to know that the defendant no. 5 had died, the plaintiffs filed an application under Order xxii Rule 4 (4) of the Code of Civil Procedure thereby praying for dispensing with the necessity of substitution of the legal heirs and representatives of the defendant no. 5 in the suit. (f) The learned Trial Judge, however, rejected such prayer on the ground that after the actual abatement had taken place on the death of the defendant no. 5, the discretion conferred upon the Court under Order XXII Rule 4 (4)could not be exercised and accordingly, dismissed such application. (g) Being dissatisfied, the plaintiffs filed a revisional application before this court and the then Hon'ble Chief Justice, sitting in revision affirmed the order passed by the learned Trial Judge. (h) Subsequently, the learned Trial Judge not only held that on the death of the defendant no. 5 the entire suit had abated but also dismissed the suit on merit.
(3.) BEING dissatisfied, the plaintiffs have come up with the present appeal. After hearing Mr Banerjee, the learned senior advocate appearing on behalf of the appellants and after going through the materials on record, we first propose to consider the question whether the learned Trial Judge was justified in recording the abatement of the entire suit.;