F.Rodingliana Vs Sh Km. Lianzuala and 4 Ors.

Heard Mr. K. Roland, learned counsel for the petitioner and Ms. Vanneihsiami, learned Govt. Advocate for the respondent Nos. 2 to 5. None appears for the respondent No. 1 despite notice.

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[2.] By filing this application under Section 115 read with Section 151 of the Code of Civil Procedure, 1908 (CPC), the petitioner seeks revision of the order dated 30.07.2024 passed by the Civil Judge (Junior Division) – IV, Aizawl in CMA No. 435/2023 arising out of Civil Suit No. 38/2019. The learned counsel submits that the respondent No. 1 filed Civil Suit No. 38/2019 initially against the official respondent Nos. 2 to 5 and later on against Sh. F. Kapsanga claiming compensation of more than 5 lakhs for destruction of his land in connection with the construction of Samtlang to Hualngohmun road. Initially, Sh. F. Kapsanga was not impleaded as a party defendant and he was later on impleaded as defendant No. 5. During the pendency of the Civil Suit, the defendant No. 5 expired on 18.03.2023 and the respondent No. 4/plaintiff filed CMA No. 435/2023 for substitution of defendant No. 5 by his legal heir. The learned

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counsel submits that the legal heir of the defendant No. 5 was nowhere mentioned in the application and the substitution application was filed beyond the period of limitation. The learned Trial Court however issued notice to the defendant No. 5 who was no longer alive through the plaintiff. When the defendant No. 5 did not respond on various court dates, the learned Trial Court passed the impugned order impleading the present petition as defendant No. 5 by substituting the original defendant No. 5 on 30.07.2023. The learned counsel submits that the petitioner is the son of the original defendant No. 5 and resides in a different locality altogether and therefore, without there being any notice to the petitioner, the learned Trial Court could not have impleaded him as defendant No. 5 in the Civil Suit and that too beyond the period of limitation.

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[3.] The learned counsel submits that Order 22 Rule 4 (3) of the CPC provides that where within the time limited by law, no application is made under SubRule (1) (for substitution of the deceased by his legal heir, if cause of action survives), the suit shall abate as against the deceased defendant. He therefore submits that since no application was filed for substitution of the original defendant No. 5 within the prescribed time, the suit in terms of the said provision would stand abated in so far as the original defendant No. 5 is concerned. Therefore, the learned Trial Court through the impugned order could

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not have impleaded the petitioner as defendant No. 5 in the Civil Suit in the manner it was done and therefore, the impugned order should be set aside.

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[4.] Ms. Vanneihsiami, learned Govt. Advocate has drawn the attention of this Court to the order dated 17.02.2022 passed by the lower Court in the Civil Suit wherein, the original defendant No. 5 was impleaded as a party defendant. She submits that from the said order sheet and the subsequent orders passed, more particularly on 18.11.2022, it appears that the defendant No. 5 was represented before the Trial Court. She submits that if the defendant No. 5 was represented, his counsel could have informed the Court about the demise of the defendant No. 5 and/or objected to the Civil Suit as well as the application for substitution. The same having not been done, the petitioner cannot raise the grievance of the defendant No. 5 being substituted by the present petitioner.

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[5.] I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record including the LCR of CMA No. 435/2023. In the order sheet of the main Civil Suit, although the learned Trial Court has recorded that the counsel for the defendant is present with a prayer for more time to file Written Statement but it may be seen that defendant Nos. 1 to 4 are the official defendants whereas the defendant No. 5 is a private defendant. It cannot be ascertained as to whether the appearance of

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the defendant recorded would mean the appearance of both the official defendants as well as the private defendant through their respective counsel. Further, the respondent No. 1/plaintiff in his application for substitution i.e., CMA No. 435/2023 has not incorporated the name of the present petitioner either in the cause title or in the statements of the application. Further, the said application was said to have been received and registered on 20.06.2023 whereas the original defendant No. 5 expired on 18.03.2023 and therefore, the application of substitution apparently was admittedly filed beyond the period of limitation since Article 120 of the Limitation Act prescribes 90 days time for filing substitution application.

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[6.] The respondent No. 1/plaintiff did not file a separate application seeking condonation of delay in filing the substitution application. This aspect of the matter has been overlooked by the learned Trial Court. Further, although the original defendant No. 5 expired on 18.03.2023 but yet summon was issued to him through the plaintiff.

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[7.] The learned counsel for the petitioner has also submitted that the claim for compensation made by the respondent No. 1/plaintiff is above 5 lakhs and therefore, the Suit is beyond the pecuniary jurisdiction of the Civil Judge (Junior Division). Therefore, even on this ground, the Civil Suit could not have been

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entertained by the learned Trial Court. However, this Court is not inclined to go into that aspect of the mater at this stage in view of the fact that the main challenge made in the instant petition is with regard to the application for substitution having been filed beyond the period of limitation and without notice to the petitioner.

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[8.] Upon due consideration and upon hearing the learned counsels for the parties, this Court is of the considered view that the impugned order dated 30.07.2023 is not sustainable and accordingly, the same is set aside. Notwithstanding setting aside of the impugned order, the respondents will be at liberty to seek remedy as may be available in accordance with law.

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[9.] Civil Revision Petition stands disposed of.

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JUDGE

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Comparing Assistant

F.Rodingliana v. Sh Km. Lianzuala and 4 Ors.

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F.Rodingliana v. Sh Km. Lianzuala and 4 Ors.

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