Debangshu Chowdhury vs Sree Sree Radha Gobinda Jew

Sabyasachi Bhattacharyya, J.:-

Upon hearing learned counsel for the parties, we find sufficient explanation for the delay having been furnished inasmuch as the appellant was ill for a particular period.

Hence, CAN 1 of 2026 is allowed, thereby condoning the delay in preferring FMAT 339 of 2026.

There will be no order as to costs.

Both the appeals, arising out of connected matters, are admitted to be heard on the grounds taken in the memoranda of appeal.

In view of the short question involved, we take up the appeals themselves for hearing along with the connected applications.

By the first impugned order dated July 31, 2026, which is the subject-matter of challenge in FMAT 339 of 2026, an application under Order XXII Rule 10 of the Code of Civil Procedure for impleading one Chandan Kumar Mitra, claiming to be the shebait of the plaintiff deity Sree Sree Radha Gobinda Jew, was allowed.

By the order impugned in the next appeal, that is, FMAT 340 of 2026, an application for recall of the above order was rejected.

Learned counsel for the appellant argues that the appellant’s father Shovon Lal Chowdhury has been admitted to be a sub -tenant in respect of the suit property and, as such, on the demise of his late father, the appellant has an interest in the property. Moreover, the appellant is the original defendant in the suit and, as such, is entitled to a right of hearing on the application under Order XXII Rule 10.

However, the application under Order XXII Rule 10 of the Code was allowed without granting any opportunity to the appellant to file any written objection thereto, in contravention of the principles of natural justice.

It is next contended by the appellant that apart from the said Chandan Kumar Mitra, whose right as a shebait is also denied by the appellant, there are several other shebaits, including the female heirs of the settlor, who have not been impleaded in a suit, rendering the suit bad for non-joinder of such parties.

Thus, it is argued that the impugned order in FMAT 339 of 2026 is vitiated. Consequentially, the order impugned in FMAT 340 of 2026 should also be set aside.

Learned counsel appearing for the respondent submits that Chandan Kumar Mitra, the applicant in the Order XXII Rule 10 application, is also a shebait in respect of the suit property and has locus standi to carry forward the prosecution of the suit on behalf of the plaintiff/deity on the demise of Hirak Kumar Mitra, who had originally filed the suit representing the plaintiff/deity Sree Sree Radha Gobinda Jew.

That apart, as pleaded in the plaint itself, the original settlor made an arrangement in the arpannama itself to the effect that only the male descendants shall be entitled to shebaitship.

Hence, there is no flaw on the part of the learned Trial Judge in permitting the said Chandan Kumar Mitra to be substituted in the suit.

Upon query of the Court to learned counsel for the appellant as to what is the nature of the objection that the appellant would raise to the application under Order XXII Rule 10 of the Code, if such opportunity were to be granted, learned counsel reiterates the contentions as made above.

We find from the arguments of the appellant that even if granted an opportunity to file a written objection, no arguable question could have been raised by the appellant.

Insofar as the contention regarding other shebaits not being impleaded is concerned, the said ground was available, if at all, to the appellant from the inception of the suit and not at the juncture when the application under Order XXII Rule 10 of the Code was made and will even be available, subject to the filing of written statement within time, for being argued at the final hearing of the suit.

The issue of alleged non-joinder of the female heirs of the settlor, in any event, does not make any difference in the outcome of the application under Order XXII Rule 10 of the Code, and would be one of the subject-matters of challenge in the suit itself.

Moreover, we find from paragraph no.2 of the plaint itself, as noted by the learned Trial Judge, that going by the plaint averments, as per the Arpannama, no female descendant would be entitled to shebaitship.

The application under Order XXII Rule 10 of the Code was filed on the premise of such assertion.

In any event, the right, title and interest of Chandan Kumar Mitra as a shebait were not decided conclusively by the impugned order.

Rather, as a matter of course, in view of the claim of Chandan Kumar Mitra as a Shebait to represent the plaintiff deity on the demise of Hirak Kumar Mitra and none else having coming up with such plea, it was incumbent upon the learned Trial Judge to allow the application under Order XXII Rule 10 of the Code in order to ensure that the interest of the deity is properly represented in the suit.

Thus, no substantial prejudice was caused to the appellant by non-grant of opportunity for filing written objection, as the issues sought to be raised in such objection, as discussed above, could not have altered the outcome of the impugned order.

In any event, the issue sought to be raised now are open to be raised by the appellant, as indicated above, subject to filing of a written statement within time and an issue being raised with regard thereto, at the final hearing of the suit.

Be that as it may, we do not find any illegality in the impugned order.

Hence, FMAT 339 of 2026 is dismissed on contest, thereby affirming the impugned order bearing Order No.44 dated June 25, 2026 passed by the learned Judge, Tenth Bench, City Civil Court at Calcutta in Title Suit No.49 of 2021.

Consequentially, FMAT 340 of 2026 is also dismissed on contest, thereby affirming the order bearing Order No.46 dated July 31, 2026, whereby the connected recall application was also dismissed.

The connected application bearing CAN 2 of 2026 is also dismissed insofar as the same pertains to the rejection of the appellant’s application under Section 151 of the Code of Civil Procedure for recall of the order dated June 25, 2026.

There will be no order as to costs.

Urgent Photostat certified copies of this judgment, if applied for, be made available to the parties upon compliance with the requisite formalities.