Madhuri Mitra vs Khounish Chandra Pal

This is an application on behalf of the substituted cross-objectors for recording abatement of the appeal on the ground of death of the sole respondent as the appellant did not take any step for substitution of the heirs and legal representatives of the said plaintiff/respondent in this appeal. This appeal arises out of a suit for eviction of a premises tenant, recovery of arrears of rent, mesne profit and other consequential reliefs.

The learned Trial Judge, by judgment and decree dated July 16, 1998, decreed the suit on contest with costs.

The defendants/appellants preferred Title Appeal No. 192 of 1993, which was, eventually, transferred to the court of the learned Additional District Judge, Second Court, Hooghly.

The plaintiff, also, preferred a cross-objection as the plaintiff was dissatisfied with certain findings of the Trial Court.

The lower Appellate Court dismissed both the appeal and the cross-objection.

The defendants/appellants preferred this appeal.

Subsequently, the plaintiff/respondent, also, filed a cross-objection.

In the cross-objection, the heirs and legal representatives of the plaintiff/respondent applied for their substitution as cross-objectors and the learned Registrar (Administration), by order dated July 13, 2011, allowed the said application for substitution and directed substitution of the heirs and legal representatives of the deceased/cross-objector as substituted cross-objectors in the cross-objection. The office carried out the amendments in the memorandum of cross-objection.

However, the appellants did not take any step consequent upon the death of the plaintiff/respondent for substituting his heirs and legal representatives in this appeal. Therefore, this application is filed for recording an order of abatement of the appeal.

In my view, the prayer cannot be granted.

The Supreme Court of India in N. Jayaram Reddi & Anr., vs. Revenue Divisional Officer and Land Acquisition Officer, Kurnool, reported in AIR 1979 SCC 1393 holds that where cross-appeals are preferred against a common decree or an award and in the cross-appeal the parties are arrayed in rival positions and where one party as appellant dies and his legal representatives are brought on record though those very legal representatives are not substituted in his place, which he adopted as respondent in the cross-appeal, the cross appeal would not abate.

In this case, the respondent in the appeal dies and his heirs and legal representatives are brought on record as cross-objectors in the connected cross-objection though his very heirs and legal representatives are not substituted in his place as respondents in the appeal; the appeal would not abate. Therefore, the application filed under C.A.N. 2243 of 2011, praying for recording of abatement of the appeal, is rejected.

Put up the appeal and the cross-objection for hearing on Wednesday next.

The office is directed to supply the complete records. I make no order as to costs.