Dismissed

Kailash Ch.Swain v. Prafulla Pradhan

Orissa HC1 Dec 2015WP(C)/3324/2007

Case brief

AI extract

What is this about?

A writ petition assailing the trial court's order allowing withdrawal of a suit was dismissed as no illegality or infirmity was found in such impugned order despite procedural lapses regarding amended plaint filing. Substantial representation of legal heirs was noted.

What did the court decide?

The writ petition assailing the lower court's order allowing withdrawal of suit is dismissed as there is no illegality or infirmity in the impugned order.

Assailing the order dated 2.2.2007 passed by the learned Civil Judge (Jr.Divis ion), Nimapara in T.S.No.402 of 1998, the instant petition is filed under Article 227 of the C onstitution of India. By the said order, the learned trial court allowed the application of pl aintiffs filed under Order 23 Rule-1 (3) of C.P.C. and granted liberty to institute a fresh su it.

Learned counsel for the petitioners submits that after death of plaintiff no.1 , one of his son was not substituted. Further after death of defendant no.3, the plaintiffs fi led an application for substitution. The same was allowed. The case was posted to 30.6.2005 to file amended plaint. But due to non-filing of the amended plaint, the orderwas recalled. Lear ned counsel for the petitioners further submits that non-impleation of necessary parties is a formal defect and as such the learned trial court has committed a manifest illegality in not a llowing the application for withdrawal. In the instant case, all the legal heirs of the plaint iff no.1 have been brought on record except 1.

So far as substitution of legal heirs of deceased defendant no.3 is concerned, the application filed by the plaintiff for substitution of the legal heirs of defendant no.3 has been allowed. For non-filing of amended plaint within the time stipulated, the order was r ecalled. It is not a case that

necessary parties are not impleaded. Since all the legal heirs of plaintiff no.1 have been sub stituted, the same amounts to substantial representation. In view of the fact that the applica tion for substitution of the legal heirs of the plaintiff no.1 have been allowed and the amen ded plaint could not be filed within the time stipulated, the same is not per se a ground to refuse the prayer for wit hdrawal of the suit.

There being no illegality or infirmity in the order dated 2.2.2007 passed by t he learned Civil Judge (Jr.Division), Nimapara in T.S.No.402 of 1998, this Court is not inclin ed to interfere with the same. Accordingly, the same is dismissed.

Kailash Ch.Swain v. Prafulla Pradhan

Case brief

What is this about?

What did the court decide?

Kailash Ch.Swain v. Prafulla Pradhan

Case brief

What is this about?

What did the court decide?

What the court decided

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