Tripura High Court declines to interfere in recall of orders after defendant’s death in commercial suit

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Case Name

M/s. Ratnagiri Impex Pvt. Ltd. vs. Shri Joydeep Roy Barman & Ors. (High Court of Tripura, Agartala)

CRP No.102/2024

Date: 22nd November 2024

Key Takeaways

• No Interference by High Court: The High Court refused to interfere with the trial court’s decision to recall orders related to serving summons on a deceased defendant, emphasizing that the consequences of not substituting the deceased would affect only the plaintiff.
• Ex Parte Proceedings Stand: Since the suit had already proceeded ex parte against the deceased defendant (and others) years ago, and that order had attained finality, there was no need to continue efforts to serve him or substitute his legal heirs.
• Focus on Expeditious Trial: The court stressed the importance of not delaying the trial further, especially in light of earlier Supreme Court directions to dispose of the suit quickly.
• Jurisdictional Boundaries: The judgment clarifies the limited scope of the High Court’s powers under Article 227 of the Constitution, which is to ensure the trial court acts within its jurisdiction, not to re-examine the merits of every procedural order.

Issue

Was the trial court justified in recalling orders related to serving summons on a deceased defendant and proceeding with the suit without substituting his legal heirs, especially when the suit had already proceeded ex parte against him?

Facts

• The case started as Money Suit No.27 of 2014 and was later converted to Commercial Suit No.01 of 2019 under the Commercial Courts Act, 2015.
• Defendants 2, 3, and 5 were debarred from filing written statements and the suit proceeded ex parte against them from 21.11.2015.
• Defendant No.1 (Ratnagiri Impex) and Defendant No.4 had their defenses struck off, but were allowed to cross-examine witnesses and participate in the trial.
• Defendant No.1 challenged the striking off of their defense up to the Supreme Court, which eventually allowed their written statement to be taken on record and directed the trial court to dispose of the suit expeditiously (SLP© No.5501/2019 and SLP© No.5595/2019).
• In 2022, it was brought to the court’s notice that Defendant No.3 had died. Efforts were made to serve summons and ascertain his legal heirs, but these were unsuccessful.
• The trial court, on the plaintiff’s application, recalled earlier orders related to serving Defendant No.3 and decided to proceed with the suit, fixing the next date for cross-examination of witnesses.
• Defendant No.1 challenged this recall, arguing it was done without giving them a chance to object and that the trial court should have tried harder to serve or substitute Defendant No.3’s legal heirs.

Arguments

Defendant No.1 (Petitioner: Ratnagiri Impex Pvt. Ltd.)

• The trial court erred in recalling the orders without giving them an opportunity to object.
• The court should have tried to serve Defendant No.3 through alternative means (like newspaper publication) as per the Code of Civil Procedure.
• Proceeding ex parte without substituting Defendant No.3’s legal heirs could lead to future complications and multiplicity of proceedings.
• Defendant No.1 cannot be held responsible for not providing the address or death certificate of Defendant No.3, as they did not have this information.

Plaintiff (Respondent No.1: Shri Joydeep Roy Barman)

• The suit had already proceeded ex parte against Defendant No.3 since 2015, and that order had become final.
• The recent efforts to serve Defendant No.3 were unnecessary and only delayed the trial.
• The consequences of not substituting Defendant No.3 would fall on the plaintiff, not on Defendant No.1.
• Defendant No.1 can still contest the suit and cross-examine witnesses based on their own written statement and evidence.

Key Legal Precedents

• Article 227 of the Constitution of India: The High Court’s power is supervisory, not appellate. It can intervene only if the trial court acts outside its jurisdiction or commits a jurisdictional error.
• Section 115 of the Code of Civil Procedure, 1908: Initially invoked but later withdrawn by the petitioner; the revision was pressed only under Article 227.
• Order VIII Rule 1 CPC: Relates to the filing of written statements. The Supreme Court, in SLP© No.5501/2019, directed the trial court to accept the delayed written statement of Defendant No.1 in the interest of justice.
• Supreme Court Orders (SLP© No.5501/2019 and SLP© No.5595/2019): Directed the trial court to dispose of the suit expeditiously and allowed Defendant No.1’s written statement to be taken on record.

Judgement

• The High Court (Chief Justice Apresh Kumar Singh) held that since the suit had proceeded ex parte against Defendant No.3 (and others) since 2015 and that order had attained finality, the consequences of not substituting Defendant No.3 would fall on the plaintiff, not on Defendant No.1.
• The court found that the recent efforts to serve Defendant No.3 or substitute his legal heirs were unnecessary and only delayed the trial, contrary to the Supreme Court’s direction for expeditious disposal.
• The High Court refused to interfere under Article 227, as the trial court had not exceeded its jurisdiction.
• The revision petition was dismissed, and the trial was ordered to proceed without further delay.

FAQs

Q1: What happens if a defendant dies during a suit and is not substituted?

A: If a defendant dies and their legal heirs are not substituted, the consequences (such as abatement of the suit against that defendant) fall on the plaintiff. The remaining defendants and the court are not responsible for this, especially if the suit had already proceeded ex parte against the deceased.

Q2: Why did the High Court refuse to interfere?

A: The High Court found that the trial court acted within its jurisdiction and that the efforts to serve or substitute Defendant No.3 were unnecessary, as the suit had already proceeded ex parte against him. The court also wanted to avoid further delays in the trial.

Q3: What is the significance of the Supreme Court’s direction in this case?

A: The Supreme Court had directed the trial court to accept Defendant No.1’s written statement and to dispose of the suit as quickly as possible. This direction was a key reason why the High Court emphasized avoiding further delays.

Q4: Can Defendant No.1 still participate in the trial?

A: Yes, Defendant No.1 can still contest the suit, cross-examine witnesses, and present evidence, as their written statement is on record following the Supreme Court’s order.

Q5: What is Article 227 of the Constitution?

A: Article 227 gives High Courts the power to supervise lower courts to ensure they act within their jurisdiction. It is not meant for re-examining the merits of every procedural order, but to correct jurisdictional errors.