Sadhan Kumar Gupta, J.
1. The fact leading to the filing of the First Miscellaneous Appeal and the Civil Revision is that the appellants/petitioners, as plaintiffs, filed the suit against the defendants/respondents/opposite parties praying for declaration, recovery of possession by eviction of licensee and permanent injunction. According to the plaintiffs, Anath Bandhu Kundu, Gopal Chandra Kundu and Dina Bandhu Kundu being the brothers were the co-sharers in respect of the suit property. As such, all of them were shown as plaintiffs in the suit. The suit was heard by the learned Trial Court and was dismissed on contest.
Challenging the said judgment and decree, the plaintiffs preferred Title Appeal No. 26 of 1995 before the learned District Judge, Barasat. During the pendency of the appeal, it was submitted by the appellants that one of the appellants/plaintiffs being appellant No. 3 Dina Bandhu Kundu expired on 17/7/2003 leaving behind his son, two daughters and his widow as his legal heirs. One Jyotsna Kundu who is a stranger in the proceeding, filed an application under Order XXII Rule 3 read with Section 151 of the Code of Civil Procedure praying for substitution of the heirs of the deceased Dina Bandhu Kundu. The learned Additional District Judge, Fast Track Court No. 2 at Barasat, after considering the said application for substitution, rejected the same on contest vide order No. 65 dated 22/1/2004 on the ground that it was not maintainable in law as the applicant Jyotsna Kundu was not a party to the proceeding and her status was also not disclosed in the verification. Due to the rejection of the said petition, the appeal abated as a whole and the appellants/petitioners filed another application under Order XXII Rule 9 of the Code of Civil Procedure for the purpose of setting aside abatement, which took place due to the death of the appellant No. 3 Dina Bandhu Kundu. Said petition was registered as Misc. Case No. 2 of 2004, but it was dismissed on contest by the learned First Appellate Court on 14/1/2005.
2. Challenging the said order of dismissal, the appellants/petitioners filed the instant appeal. Thereafter at a much belated stage viz. about one and half years from the date of passing order dated 22/1/2004, rejecting the prayer of substitution, they filed another application under Article 227 of the Constitution of India, which is the present revisional application.
3. Both the First Miscellaneous Appeal and the Civil Revisional Application were directed to be heard together as both are interconnected and the issues involved in those two matters are similar in nature.
4. It is the admitted position that the suit in question was filed by several plaintiffs including the plaintiff/appellant No. 3 Dina Bandhu Kundu. There is no dispute that this Dina Bandhu Kundu died on 17/7/2003 leaving behind his son, two daughters and his widow, as his legal heirs. While the appeal was pending at that time one Jyotsna Kundu filed an application praying for addition of the heirs of Late Dina Bandhu Kundu so far as the said proceeding is concerned. But the learned First Appellate Court rejected such application on 22/1/2004 on the ground that the said application was not maintainable as Jyotsna Kundu was not a party to the proceeding. Thereafter the plaintiffs filed another application under Order XXII Rule 9 of the Code of Civil Procedure praying for substituting the heirs of late Dina Bandhu Kundu by setting aside the abatement. Said application was also dismissed on the same ground on 14/1/2005. Both the orders have been challenged before this Court and as those are interconnected, so both the applications are taken up for consideration. There is no dispute that late Dina Bandhu Kundu was one of the plaintiff/appellant. As such, after his death the presence of his heirs is absolutely necessary. It is the contention of the defendant/respondent opposite party that Dina Bandhu Kundu or his heirs are not at all interested in the proceeding and are not willing to be added as parties in connection with this appeal. The defendant has further questioned the authority of this Jyotsna Kundu in filing such applications. According to the learned Advocate for the opposite party, for setting aside an abatement order, sufficient grounds are to be made out in the petition by a competent person and unless that is done, the abatement order cannot be set aside. In this respect, he has relied upon the decision reported in : [1964]3SCR467 (Union of India v. Ram Charan) and 0065/1976 : AIR1976Cal299 (The Corporation of Calcutta v. Murari Churn Law). There cannot be any dispute in respect of the ratio, as decided in those decisions. Certainly it is the duty of the Court to see as to whether the petitioner was prevented due to sufficient reasons for not filing such application in the Court within the prescribed time limit. So far as this matter is concerned, it appears that after the death of Dina Bandhu Kundu, a petition for substituting his heirs was filed within the time limit. But the learned Additional District Judge was pleased to reject such petition on the ground that the petitioner Jyotsna Kundu had no capacity to file such application. Against the said order, no revisional application was preferred. Instead the appellants subsequently filed a petition under Order XXII Rule 9 Code of Civil Procedure for setting aside the abatement order. It appears clearly that due to misconception such an application under Order XXII Rule 9 Code of Civil Procedure was preferred. When the application for substitution was filed within the time limit and when such an application was rejected by the Court on the ground of non maintainability, then it was obligatory on the part of the appellants to challenge the said order in revision. Instead they preferred to file an application under Order XXII Rule 9 Code of Civil Procedure which was definitely time barred. But we must not forget that the appellants filed the application for substitution within the time limit and it was rejected by the Court on the ground of maintainability. Thereafter the appellants proceeded with the matter by taking wrong step by way of filing a petition under Order XXII Rule 9 Code of Civil Procedure. Under such circumstances, I think that the main thing that is to be considered is whether the learned Additional District Judge was justified in passing the order dated 22/1/2004 by way of rejecting the prayer for substitution on the ground of maintainability. Since it has been alleged that the said order has caused miscarriage of justice, it is incumbent upon this Court to look into the matter in its supervisory capacity as per provisions of Article 227 of the Constitution of India in order to see that substantial Justice is done in between the parties. So the question of filing the revisional application at a belated stage has got no relevancy at all and cannot stand as a bar for the High Court in not looking into the propriety of the said order passed by the learned Court below. As such, I prefer to look into the propriety of the said order, as passed by the Court below in rejecting the prayer for substitution.
5. I have already pointed out that the appellant No. 3 Dina Bandhu Kundu was a necessary party and after his death his heirs are required to be substituted in his place in order to proceed with the appeal. It is alleged by the defendant/opposite party that neither Dina Bandhu nor his heirs were interested in proceeding with the suit/appeal and they were illegally added as plaintiff/appellant in the proceeding. Whether they are unwilling or not that cannot be decided at this stage. Fact remains that they are absolutely necessary parties so far as the appeal is concerned.
6. Learned Advocate for the defendant/opposite party argued that the Courts below rightly held that Jyotsna Kundu who filed the application was a stranger to the proceeding and she was not capable to file such an application and as such, according to him, both the Courts rightly rejected the petition on the ground that Jyotsna Kundu had no capacity to file such suit.
It appears that this Jyotsna Kundu is the wife of one of the appellants viz. Gopal Kundu and as such, she cannot be described as a stranger to the proceeding. In the application praying for substitution as well as in the petition filed under Section 5 of the Limitation Act, the status of Jyotsna Kundu was mentioned. In order to file such a petition it is required that a person concerned who signed the petition has adequate knowledge about the facts of the matter and he was properly instructed to file such petition. I have already pointed out that Jyotsna Kundu is the wife of one of the appellants and as such, in absence of any contrary evidence, it cannot be said that this Jyotsna Kundu had no capacity to file such an application. Whether the heirs of deceased Dina Bandhu Kundu are willing or not to be added as appellants in this appeal, is a separate question to be decided by the Court later on. Fact remains that the heirs of Dina Bandhu Kundu, who was one of the appellants, are very much required for the purpose of proper determination of the appeal. If those heirs are added as parties and if they subsequently express before the Court that they were not willing to proceed with the appeal, then appropriate order can be passed by the Court by way of transposing them to the category of pro-forma appellants. At this stage, on the assumption that those heirs are not willing to be added as appellants, as claimed by the learned Advocate for the defendant, cannot be accepted and on that basis the substitution application cannot be dismissed. To my mind, for proper determination of the appeal, the heirs of Dina Bandhu Kundu must be added as appellants and the petition so filed should be allowed.
7. In the result, both the revisional application being CO. No. 2179 of 2005 and the FMA No. 749 of 2005 are allowed on contest but without cost. The orders dated 22/1/2004 and 14/1/2005, as passed by the learned Additional District Judge, Fast Track Court-II are set aside. The prayer for substitution of the heirs of late Dina Bandhu Kundu is allowed. Let those heirs be substituted in place of Late Dina Bandhu Kundu and the memorandum of Appeal be amended accordingly.
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