Abdul Khalil and others vs Mujibar Rahaman and others

Jyotirmay Bhattacharya, J.—This second appeal was listed for hearing under the provision of Order 41, Rule 11 of the Code of Civil Procedure. At the time when this appeal was taken up for hearing for its admission under the provision of Order 41, Rule 11 of the Code of Civil Procedure, the report of the Stamp Reporter was brought to our notice.

We find from the report of the Stamp Reporter that the appellant no.1(a) and the respondent nos. 9, 17 and 22 in the first appeal, were not impleaded as parties in this appeal. Subsequently, the appellants herein have taken out the present application mentioning therein that the appellant no.1(a) and the respondent nos. 9, 17 and 22 in the first appeal, died during the pendency of the suit and thus the suit stood abated as their legal representatives were not brought on record and the decree was passed by the learned Trial Judge in the abated suit, in ignorance of the death of those parties.

Mst. Tetle who was impleaded as appellant no.1(a) in the first appeal died on 15th December, 2010. Maifun Nissa who was impleaded as respondent no.9 in the first appeal died on 14th June, 2010. Taukir who was impleaded as respondent no. 17 in the first appeal died on 17th January, 2007. Zarina Khatun who was impleaded as respondent no. 22 in the first appeal died on 23rd February, 2009. The suit was disposed of by the learned Trial Court on 24th May, 2012. Thus, it appears that all those abovenamed person died during the pendency of the suit. Their legal heirs and/or heiresses were not brought on record by way of substitution in the suit.

Mr. Paul, learned advocate appearing for the respondent nos. 2 to 19 submits that though it is true that Mst. Tetli died on 15th December, 2010 but her heirs were on record before the learned Trial Judge. It is pointed out by him that Mst. Tetli was the widow of late Mahamuddin. Her sons and daughters viz. Abdul Khalil, Abdul Jalil, Tahawid Alam, Tarijul Hussain and Mahmena Khatun were on record as appellants in the first appeal. It is brought to our notice that they were all parties in the suit before the learned Trial Judge. Since the legal heirs of Mst. Tetli were on record in the suit and they contested the suit before the learned Trial Court, the suit cannot abate on the death of Mst. Tetli.

He further submits that the legal representatives of the respondent no.9 viz. Maifun Nissa were also on record before the learned Trial Court. Her heirs are Matibur Rahana, Zahid Hussain, Jiaur Rahaman and Zaheda Khatun. Since they were also on record before the learned Trial Court, on the death of Maifun Nissa, the suit could not have abated.

He further points out that the legal representatives of the respondent no. 17 in the first appeal viz. Taukir were also on record, before the learned Trial Court. He informs this court that Taukir died bachelor and on his death, his estate devolved upon his brothers and sisters viz. Zakir, Israti, Anjera and Arsadi who were on record before the learned Trial Court.

As such, he submits that on the death of Taukir, the suit cannot be held to be abated.

He however, does not dispute that the Zarina Khatun who was impleaded as respondent no.22 in the first appeal died on 23rd February, 2009 during the pendency of the suit and her legal representatives were not brought on record by way of substitution in the suit.

Thus, we find that the estate of the Zarina Khatun remains unrepresented in the suit. The decree which was thus, passed by the learned Trial Judge in the said suit, became nonest in the eye of law inasmuch as, such decree was passed by the learned Trial Judge in the suit which stood abated on the death of Zarina Khatun.

Thus, in view of the judgement of this Hon''ble Court in the case of Kanailal Manna & Ors. v. Bhabataran Santra & Ors. reported in AIR 1970 CAL, 99, we have no other alternative but to set aside the judgement and decree passed by the learned Trial Judge as the learned Trial Judge passed the said decree in an abated suit. Abatement need not be recorded in the suit. Abatement takes place automatically.

As such, all the orders including the decree which were passed by the learned Trial Court after the suit stood abated, became non est in the eye of law. The decree of the learned Trial Judge is thus, set aside. As a result, the decree which was passed in the first appeal, also stands set aside as no appeal lies against any order and/or decree which is non est in the eye of law.

It is thus, made clear that if the parties so desire, they may approach the learned Trial Court for setting aside the abatement of the suit and in case the abatement of the suit is set aside by the learned Trial Judge, the learned Trial Judge will proceed to dispose of the suit in accordance with law.

It is also worth mentioning here that the respondent no.1 herein viz. Mujibur Rahaman died during the pendency of this appeal. It is thus, made clear that the parties who will approach the learned Trial Judge for setting aside of the abatement of the suit, will also take care of the situation so that the legal representatives of the said Mujibur Rahaman are also brought on record in accordance with law.

The appeal and the applications filed in connection therewith are all disposed of.

Urgent Photostat certified copy of this order, if applied for, be supplied to the Learned advocates for the parties immediately.