Soma Mazumdar and 2 Ors v. On the Death of Minati Paul Choudhury, Her Legal Heirs

ORDER

02.08.2023 Hear Shri GN Sahewalla, learned Senior Counsel assisted Shri M Sahewalla, learned counsel for the petitioners.

¶2The petitioners, who are three in numbers, have filed this petition under Article 227 of the Constitution of India challenging an order dated 03.07.2023 passed by the learned Munsiff No. 2, Dhubri in TS No. 420/2015. By the said order dated

03.07.2023, a petition made under Order XXII Rule 2 of the Code of Civil Procedure

(CPC) read with Section 151, which was filed by the aforesaid petitioners for substitution of their names in place of the defendant no. 3 in the aforesaid title suit, has been rejected.

¶3The facts projected in the petition is that there were 3 nos. of defendants in the suit and defendant no. 3 was the Power of Attorney holder of the defendant nos. 1 and 2. During the pendency of the suit, defendant no. 3 expired. Shri Sahewalla, learned Senior Counsel has submitted that amongst the three petitioners, the petitioner no. 1 is the wife of defendant no. 3. However, the learned Senior Counsel fairly submits that the petitioner nos. 2 and 3 are not immediate relatives but it is submitted that there are two relinquishment deeds by the defendant nos. 1 and 2 in favour of the petitioners and on the strength of such relinquishment deeds, the rejection ought not to have been done. It is further submitted that under the provisions of Order I Rule 10 (2), the Court can even suo moto add or strike out any parties in the interest of justice.

¶4Considered the aforesaid submissions and the impugned order has also been Page No.# 4/4 examined.

¶5Though the learned Senior Counsel appears to be correct in contending that the Court never exercised powers for impleadment, the discussion in the impugned order appears to be confined to the petition filed under Order XXII Rule 2 and there is no reflection in the order that any contention was made to invoke the powers under Order I Rule 10 (2).

¶6Under these circumstances, this Court, in exercise of revisional jurisdiction, would not be in a position to find any legal infirmity with the said order. At the same time, the issue of existence of relinquishment deeds in favour of the petitioners without there being any adjudication cannot be foreclosed at this stage.

¶7In view of the above, this Court is of the view that interest of justice would be served if the equities are balanced. Therefore, while dismissing the present petition in absence of any grounds made out for such interference, the petitioners are at liberty to file appropriate application under Order I Rule 10 (2) for impleadment of parties and in the event of such application being filed, the same is directed to be considered in its own merits and without being influenced by the earlier order of dismissal dated

03.07.2023 wherein, admittedly, only the application under Order XXII Rule 2 of the Code of Civil Procedure (CPC) read with Section 151 was the subject matter of consideration.

JUDGE Comparing Assistant

PageoNo.#o1/4 GAHC010156882023 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oCRP(IO)/245/2023o SOMAoMAZUMDARoANDo2oORSo W/OoLATEoDIBAKARoMAZUMDAR,oR/OoWARDoNO.o4,oRABINDRAoSARNI,o P.O.oANDoP.S.-DHUBRI,oDIST-oDHUBRI,oASSAM 2:oRANJUoMAZUMDAR oW/OoBHOLAoMAZUMDAR oR/OoWARDoNO.o4 oRABINDRAoSARNI oP.O.oANDoP.S.-DHUBRI oDIST-oDHUBRI oASSAM 3:oSONALIoMAZUMDAR oW/OoMRIDULoMAZUMDAR oR/OoWARDoNO.o4 oRABINDRAoSARNI oP.O.oANDoP.S.-DHUBRI oDIST-oDHUBRI oASSAo VERSUSo ONoTHEoDEATHoOFoMINATIoPAULoCHOUDHURY,oHERoLEGALoHEIRSo ONoTHEoDEATHoOFoTAPASoPAULoCHOUDHURY,oHISoLEGALoHEIRS 1.1:SMTIoPUSPOoPAULoCHOUDHURY oW/OoLATEoTAPASoPAULoCHOUDHURY oR/OoWARDoNO.o2 oP.M.oDUTTAoROAD oDHUBRIoTOWN oP.O.oANDoP.S.-DHUBRI oDIST-DHUBRI oASSAM oPIN-783301 Page No.# 2/4 1.2:SANTANU PAUL CHOUDHURY S/O LATE TAPAS PAUL CHOUDHURY R/O WARD NO. 2 P.M. DUTTA ROAD DHUBRI TOWN P.O. AND P.S.-DHUBRI DIST-DHUBRI ASSAM PIN-783301 1.3:MARAJIT PAUL CHOUDHURY S/O LATE TAPAS PAUL CHOUDHURY R/O WARD NO. 2 P.M. DUTTA ROAD DHUBRI TOWN P.O. AND P.S.-DHUBRI DIST-DHUBRI ASSAM PIN-783301 2:CHANDAN PAUL CHOUDHURY S/O LATE MAKHAN PAUL CHOUDHURY R/O WARD NO. 2 P.M. DUTTA ROAD DHUBRI TOWN P.O. AND P.S.-DHUBRI DIST-DHUBRI ASSAM PIN-783301 3:SMTI MALABIKA GHOSH W/O LATE PARTHA PRATIM GHOSH R/O WARD NO. 2 P.M. DUTTA ROAD DHUBRI TOWN P.O. AND P.S.-DHUBRI DIST-DHUBRI ASSAM PIN-78330 Advocate for the Petitioner : MR G N SAHEWALLA Advocate for the Respondent : Page No.# 3/4 BEFORE HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI