AI Structured Summary
Not yet generated for this judgment
Judgment
We have perused the report filed by the Department in compliance with our orders dated 4th November, 2019 and 6th December, 2019 recording
service of notice of appeal upon the sole respondent. We are satisfied with the report filed by the Assistant Registrar.
It appears that the respondent is aware of the pendency of the present appeal. It appears that the respondent is avoiding service of notice of appeal.
Accordingly, we have taken up the stay application along with the appeal.
This appeal is arising out of an order dated 19th July, 2018 passed by the learned Civil Judge (Senior Division), 10th Court, Alipore, South 24 Parganas
in an application filed by the son of the original plaintiff for substitution under Order XXII Rule 9 of the Code of Civil Procedure and for setting aside
of the abatement.
The said application was taken up ex parte. The defendant did not contest the said proceeding.
It appears from the record that the original plaintiff died intestate on 27th October, 2014 leaving behind his only son as his legal heirs and successors
since his wife predeceased on 5th December, 2011.
On 28th November, 2014 the death was duly intimated to the learned Court. On 28th January, 2015, the appellant filed an application praying for time
for filing substitution petition along with the death certificate of the original plaintiff and such prayer was allowed and the matter was adjourned till 12th
March, 2015.
On 12th March, 2015 the appellant filed an application under Order XXII Rule 3 of the Code of Civil Procedure praying for substitution of the
petitioner’s name in place and stead of his deceased father. The learned Trial Court, however, has dismissed the said petition on the ground that
the suit had already abated. The appellant appears to have disclosed medical documents to show that he was under medical treatment and he was
advised by his physician to take complete bed rest. As a result whereof, there was a delay of about one month in taking out the application for
substitution. The application for substitution should be preceded by an application for setting aside of the abatement. It appears to have inadvertently
filed. However, in the impugned order, the learned Trial Court recorded that for the period one month i.e. from 27th October, 2014 to 25th November,
2014, the plaintiff was not able to show that he was incapacitated and as a result whereof, could not take steps for filing the application for setting
aside of the abatement.
We feel that in the absence of a contrary evidence and overwhelming evidence in favour of inability of the appellant to approach the learned Trial
Court with an application for setting aside of the abatement and for substitution, the learned Trial Judge ought to have allowed the application for
substitution after setting aside the abatement.
We also find that the appellant has paid almost 60% stated consequence to the original plaintiff and in the interest of justice the application for setting
aside of the abatement and for substitution should have been allowed. However, it seems that a little over Rs.2.50 lakh was remain outstanding on the
basis of stated consequences in the agreement.
We direct the appellant, upon being brought on record on the basis of this order, to deposit a sum of Rs.2.50 lakh with the learned Trial Judge within
four weeks from date and upon compliance of this order, the appellant shall be permitted to pursue the suit.
The application for setting aside of the abatement and for substitution is allowed subject to the appellant depositing the said amount of Rs.2.50 lakh
with the learned Trial Court within the aforesaid period.
In the event the said order is complied with, we would request the learned Trail Judge to dispose of the suit on merits as expeditiously as possible.
The learned Trial Judge shall invest the said amount in a suitable fixed deposit account preferably with a nationalized bank yielding highest interest and
keeping the fixed deposit renewed from time to time till the disposal of the suit.
The appeal and the application stand disposed of accordingly.
Urgent photostat certified copy of this order, if applied for, be supplied to the parties, upon compliance of all requisite formalities.