Quashed

Ashok Ku.Sahoo v. Himanshu S.Chatterji

Orissa HC20 Nov 2015WP(C)/12502/2007

Case brief

AI extract

What is this about?

This single-judge bench quashed the trial court's order rejecting the petitioners' application to implead them as legal representatives of a deceased plaintiff under Order 1 Rule 10 C.P.C. Relying on Banawari Lal, the court applied a flexible approach to Order 22 C.P.C., granting liberty to file a substitution application.

What did the court decide?

The impugned order dated 7.8.2007 is quashed. Liberty is granted to file an appropriate application for substitution of legal heirs within four weeks.

The instant petition is filed under Article 227 of the Constitution of India t o quash the order dated 7.8.2007 passed by the learned 1st Additional Civil Judge (Sr. Divn.), Bhubaneswar in T.S. No.532/50 of 2004/99 vide Annexure-3, whereby and whereunder the learned trial court rejected the application filed by the petitioners under Order 1 Rule 10 C.P.C. to implead them as plaintiff nos.1(a) to 1(h).

Mr. Mishra, learned counsel for the petitioners submits that during pendency o f the suit, Artatrana Sahoo, plaintiff no.1, died. Thereafter the petitioners, who are the leg al representatives of the deceased-Artatrana Sahoo, filed an application under Order 1 Rule 10 C.P.C. to implead them as plaintiff nos.1(a) to 1(h). He further submits that plaintiff no.1 died, but his right to sue survives. But then the learned trial court rejected the application filed under Order 1 Rule 10 C.P.C. on untenable and unsupportable grounds.

Per contra, Mr. Patnaik, learned counsel for the opposite party no.1 submits t hat in the event one of the parties died during pendency of the suit, it is open to the legal heirs to file an application under Order 22 C.P.C. not under Order 1 Rule 10 C.P.C. He support s the order of the learned trial court.

In the case of Banawari Lal and others vrs. Balbir Singh, 2015 (9) SCALE 344, the apex Court held that the provisions contained in Order 22 are not to be construed as a rig id matter of principle but must ever be viewed as a flexible tool of convenience in the admini stration of justice. But then, on this score the petition cannot be non-suited.

In view of the same, the order dated 7.8.2007 passed by the learned 1st Additi onal Civil Judge (Sr. Divn.), Bhubaneswar in T.S. No.532/50 of 2004/99 is quashed. Liberty is granted to the petitioners to file an appropriate application for substitution of legal heirs of the deceased-plaintiff no.1 within a period of four weeks from today. In the event, the app lication is filed for substitution along with applications for setting aside abatement and con donation of delay, the same shall be considered by the learned trial court liberally in accord ance with law.

Ashok Ku.Sahoo v. Himanshu S.Chatterji

Case brief

What is this about?

What did the court decide?

Ashok Ku.Sahoo v. Himanshu S.Chatterji

Case brief

What is this about?

What did the court decide?

What the court decided

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