Quashed

Ashok Ku.Sahoo v. Jugal Kishore Rath

Orissa HC2 Dec 2015WP(C)/12503/2007

Case brief

AI extract

What is this about?

The High Court quashed the trial court order rejecting an application to implead legal representatives of a deceased plaintiff. The Court held that while Order 22 applies to death of parties, Order 1 Rule 10 remains valid for impleading representatives, following Banawari Lal v. Balbir Singh. It granted liberty to file a substitution application.

What did the court decide?

The order dated 24.8.2007 is quashed. Liberty to file 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 24.8.2007 passed by the learned 1st Additional Civil Judge (Sr. Divn.) Bhubaneswar in T.S. No.740 of 1999, 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 imple ad them as plaintiff nos.1(a) to 1(h).

Mr. Mishra learned counsel for the petitioners submits that during pendency of the suit Artatrana Sahoo plaintiff no.1 died. Thereafter the petitioners who are the legal re presentatives 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 b ut 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 learned counsel for the opposite party submits that in the event on e of the parties died during pendency of the suit it is open to the legal heirs to file an app lication under Order 22 C.P.C. not under Order 1 Rule 10 C.P.C. He supports the order of the l earned trial court.

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

In view of the same the order dated 24.8.2007 passed by the learned 1st Additi onal Civil Judge (Sr. Divn.) Bhubaneswar in T.S. No.740 of 1999 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 application is filed for substitution along with applications for setting aside abatement and condonation of delay the same shall be considered by the learned trial court liberally in accordance with law.

Ashok Ku.Sahoo v. Jugal Kishore Rath

Case brief

What is this about?

What did the court decide?

Ashok Ku.Sahoo v. Jugal Kishore Rath

Case brief

What is this about?

What did the court decide?

What the court decided

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