FIRDOUS OMER (D) BY LRS. AND ORS. versus BANKIM CHANDRA DAW (D) BY LRS. AND ORS.

Citation: [2006] SUPP. 4 S.C.R. 175 · Decided: 28-07-2006 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Appeal(s) allowed

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Judgment (excerpt)

FIRDOUS OMER (D) BY LRS. AND ORS. 
A 
v. 
BANKIM CHANDRA DAW (D) BY LRS. AND ORS. 
JULY 28, 2006 
[S.B. SINHA AND P.K. BALASUBRAMANYAN, JJ.] 
B 
Code of Civil Procedure, 1908-0rder 9 Rules 3, 4, 8 and 9-Limitation 
Act, 1963-Section 5; Article 122 of the Schedule-Calcutta High Court 
Original Side Rules-Chapter X,· Rule 35; Dismissal of suit by High Court for C 
non-prosecution under the Original Side Rules-Application for restoration 
was dismissed on the ground that the order of dismissal of the suit for non-
prosecution had been drawn up, completed and filed under the Original Side 
Rules-Correctness of-Failure of the surviving plaintiffs to bring on record 
the legal representatives of the deceased plaintiff-Effect of-Held, on law, 
the Court can restore the application by extension of time under the Limitation D 
Act-However, on facts, the application for restoration is dismissed since the 
dismissal of the suit has become final as agab1st the deceased plaintiff and it 
would result in inconsistent decree among the deceased plaintiff and the 
surviving plaintiff if the suit is restored 
Plaintiff filed a suit before High Court for declaration that he was E 
valid and lawful tenant of schedule premises, for a perpetual injunction 
restraining the defendants from interfering with his possession and for 
consequential reliefs. Pending suit, the plaintiff died and his legal 
representatives were brought on recm·d as additional plaintiffs. As no one 
appeared on behalf of the plaintiffs despite several adjournments, the suit p 
was posted before the trial judge under Rule 35 of Chapter X of the 
Original Side Rules of the Calcutta High Court and was dismissed for non-
prosecution. The order of the dismissal of the suit was drawn up, completed 
and filed under the Rules. Thereafter, the plaintiffs filed an application 
for restoration of the suit after condoning the delay, if any. The defendants-
respondents opposed the application on the ground that the trial judge G 
had become functus officio since the order of dismissal had attained finality 
after the same being drawn up, completed and filed under the Rules; that 
the application was belated; and that no ground was made out by the 
appellants for restoration of the suit. The trial judge dismissed the 
175 
H 
176 
SUPREME COURT REPORTS [2006] SUPP. 4 S.C.R. 
A application by relying on a decision of the Division Bench of the same High 
Court, where it was h~ld that the suit dismissed for default could not be 
restored to file once the order had been drawn up, completed and filed 
under the Rules. 
One of the additional plaintiffs died pending the disposal of the 
B application for restoration of the suit before the High Court. The surviving 
plaintiffs did not take steps to bring on record the legal representative of 
the deceased plaintiff. The appeal is filed by the surviving plaintiffs-
appellants before this Court by impleading the deceased plaintiff as a 
respondent. 
c 
The respondents raised a preliminary objection contending that the 
dismissal of the suit has become final as against the deceased plaintiff since 
he died pending the application for restoration of the suit and no steps 
were taken by the appellants to bring the legal representatives of the 
deceased plaintiff on record; and that if the suit is restored, it would give 
D rise to inconsistent decrees in the suit between the deceased plaintiff and 
the surviving plaintiffs. 
The appellants, in reply to the preliminary objection, contended that 
they substantially represented the estate of the original plaintiff. 
E 
Dismissing the appeal, the Court 
HELD: I.I. The contention that the surviving legal representative 
substantially represented the estate of the original plaintiff cannot take 
th1~ appellants far. The decree of dismissal as against the deceased legal 
representative has become final. Therefore, the court cannot pass an 
F inconsistent decree in the same suit by granting a decree to the other legal 
representatives. Thus, the preliminary objection is upheld that the relief 
of re-opening the suit cannot be granted to the appellants since its dismissal 
has become final as against the deceased legal representative of the original 
plaintiff. The appellants have not acted bona fide. In impleading the 
G deceased plaintiff as a respondent in the Petition for Special Leave to 
Appeal as if he were alive. [180-E-F-G-H; 184-B] 
State of Punjab v. Nathu Ram, ]1962] 2 SCR 636 and Ram Saru

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