Partly allowed

Murali Hansa v. Prabhasia Pradhan

Orissa HC16 Nov 2015WP(C)/13848/2006

Case brief

AI extract

What is this about?

In an appeal against the dismissal of an appeal petition where the legal heirs of a deceased respondent were not substituted, the High Court set aside the lower appellate order. The matter was remitted to allow substitution, restoring the petitioners' valuable right of appeal for ends of justice.

What did the court decide?

Judgment dated 9.8.2005 in F.A.O. No.16 of 2003 set aside. Matter remitted to lower appellate court with liberty to file application for substitution. Cost of Rs.1,500/- to respondents.

The opposite parties as plaintiffs instituted a suit for declaration of title, confirmation of possession and permanent injunction impleading the petitioners as defendants in the court of the learned Civil Judge (Sr. Divn.), Boudh, which was registered as C.S. No.37 /2000. The said suit was decreed exparte. Thereafter the defendants filed an application under Order 9 Rule 13 C.P.C. to set aside the exparte judgment, which was registered as M.J.C. No.2 3 of 2002. The same was dismissed on 15.7.2003. Thereafter, they have filed F.A. No.16 of 2003 in the court of the learned Additional District Judge, Boudh. During pendency of the appeal, the plaintiff no.1/respondent no.1 died. An application was filed by the legal heirs of the de ceased respondent no.1 for impleadment on 27.6.2005. The appeal was posted for hearing. Finall y by judgment dated 9.8.2005, the appeal was dismissed.

Mr. Rath, learned counsel for the petitioners submits that since the legal hei rs of the respondent no.1 filed an application for impleadment, the petitioners who are appell ants in the court below were nourishing under a bona fide impression that the application for substitution of the legal representatives of the deceased-respondent no.1 was not necessary. H e further submits that a valuable right of the petitioners has been lost due to non-substituti on of the legal representatives of the deceased-respondent no.1.

Per contra, Mr. Sahoo, learned counsel for the opposite parties supports the o rder passed by the learned lower appellate court. He submits that the learned lower appellate court is quite justified in dismissing the appeal since no substitution is made.

Considering the fact that the application for impleadment was filed by the leg al representatives of the deceased-respondent no.1 and the petitioners would be deprived of th eir valuable right of appeal, ends of justice would be better served, if the judgment of the l ower appellate court is set aside and the matter is remitted back to the lower appellate court granting liberty to the petitioners to file appropriate application for substitution of the d eceased-respondent no.1.

Accordingly, the judgment dated 9.8.2005 passed by the learned Additional Dist rict Judge, Boudh in F.A.O. No.16 of 2003 is set aside and the matter is remitted back subject to payment of cost of Rs.1,500/- (rupees one thousand five hundred) to the counsel for the re spondents within a period of four weeks from today. It is open to the petitioners to file appr opriate application for substitution of the legal heirs of the deceased-respondent no.1. In th e event, the application is filed in the appeal, the same shall be considered by the learned l ower appellate court in accordance with law. The learned lower appellate court shall endeavour to dispose of the suit as expeditiously as possible.

Murali Hansa v. Prabhasia Pradhan

Case brief

What is this about?

What did the court decide?

Murali Hansa v. Prabhasia Pradhan

Case brief

What is this about?

What did the court decide?

What the court decided

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