Dismissed

Ashok Kumar Gochhi v. State

Orissa HC1 Aug 2016OJC/2093/1999

Case brief

AI extract

What is this about?

The High Court dismissed an application seeking substitution of legal heirs for a deceased writ petitioner. The court held that the fifteen-year delay without explanation precluded the exercise of its extraordinary jurisdiction. It further ruled that prayers for treatment and compensation ceased to survive the petitioner's death and refused to decide negligence claims.

What did the court decide?

No relief granted. The miscellaneous case is dismissed and the original writ petition is rendered infructuous.

A separate application has been filed for correction / amendment of mistake in the miscellaneous petition to the effect that there is typographical error in the line no.12 from bottom to top of page no.3 appearing in between the words ignorance and done the words of law has been left out.

So far as the substitution application is concerned, it has been submitted by the learned counsel for the petitioner that the writ petitioner being the son of Sri Kirtan Go chhi and Smt.Jemadei Gochhi they have filed this application to substitute them so that they m ay pursue the writ petition.

The opposite party no.4 has objected the prayer for substitution on the ground that the original writ petitioner since has died, as such no relief can be granted at this st age, rather the writ petition may be rendered to be infructuous considering the nature of pray er made in the petition.

On perusal of the pleading made in the writ petition it is evident that this w rit petition has been filed by Ashok Kumar Gochhi seeking therein two fold prayers:- (i) To issue direction upon the opposite parties to get the petitioner treated in any Speciali zed Medical Institute / Hospital in India or abroad; and (ii) Further adequately compensate the petitioner for losses sustained and the physical and me ntal pains suffered by the petitioner with interest and cost admissible.

Thus the prayer made in the writ petition by the petitioner (now dead) is with respect to issuance of direction upon the opposite parties to get the petitioner treated in any speci alized medical institute / hospital in India or abroad and to adequately compensate him for lo sses sustained and for physical and mental pain suffered by him along with interest and cost a dmissible.

The admitted position in this case is that the writ petitioner has died on 28.1.2001. This writ petition is pending before this court since 15.2.1999, no steps have been taken by t he legal heirs to substitute them fairly for long period, rather in the year 2015 this miscell aneous application has been filed for substituting the legal heirs of the writ petitioner enab ling them to pursue the litigation.

It is settled position of law that a suit or an appeal abates automatically if the leg al representatives, particularly, of the sole plaintiff or appellant, are not brought on recor d within the stipulated period. Order 22 Rule 3, C.P.C. prescribes that where the plaintiff di es and the right to sue has survived, then an application could be filed to bring the legal re presentatives of the deceased plaintiff / appellant on record within the time specified, i.e. 90 days.

Once the proceeding has abated, the suit essentially has to come to an end, except whe n the abatement is set aside and the legal representatives are ordered to be brought on record by the court of competent jurisdiction in terms of Order 22 Rule 9(3), C.P.C. Order 22 Rule 9 (3) of the C.P.C. contemplates that provisions of section 5 of the Indian Limitation Act, 1963 shall apply to an application filed under Sub-Rule (2) of Rule 9 of Order 22, C.P.C.

Thus an application for setting aside the abatement has to be treated at par and the p rinciples enunciated for condonation of delay under section 5 of the Limitation Act are to app ly in para materia.

However, the procedure laid down under the Code of Civil Procedure is not applicable a s per the provision as contained in Section 141 of the Code of Civil Procedure, but even in ex ercise of discretionary power conferred to High Court under Article 226 of the Constitution of India, the delay and latches is to be seen.

It is not that there is any period of limitation for the Courts to exercise th eir powers under Article 226 nor is it that there can never be a case where the Courts cannot interfere in a matter after the passage of a certain length of time. But it would be a sound a nd wise exercise of discretion for the Courts to refuse to exercise their extraordinary powers

under Article 226 in the case of persons who do not approach it expeditiously for relief. The instant application has been filed without invoking any provision of law. Admitted ly this application has been filed in a writ proceeding, hence the prayer sought for in the in stant application will be allowed to be adjudicated in the light of discretionary power confer red to the High Court under Article 226 of the Constitution of India.

There is no dispute about the fact that the delay or latches is one of the factors whi ch is to be seen at the time of exercising discretionary power conferred under Article 226 of the Constitution. If there is negligence or omission on the part of the applicant to assert hi s right, the High Court may refuse to invoke its extraordinary power if it causes prejudice to the opposite party. Of course the discretion has to be exercised judiciously and reasonably. Reference in this regard may be made to the judgments rendered by Honble Apex Court in the cases of Vijay Kumar Kaul and Others Vrs. Union of India and Others, AIR (2009) SC 571 an d Karnataka Power Corporation Ltd. Vrs. K. Thangappan & Another, AIR (2006) SC 1581.

From the aforesaid pronouncement of law it is clear that a litigant who invokes the ex traordinary jurisdiction of a court, it is obligatory on his part to come to the court at earl iest or at least within reasonable span of time, but here in this case the death has occurred in the year 2001 but no steps have been taken by the applicants to come on record in the capac ity of legal heirs rather this application has been filed after lapse of long fifteen years, t hat too without explanation of inordinate delay.

The opposite party no.4 has objected this application on the ground that there is no e xplanation for inordinate delay in filing this application and on this ground it should not ha ve been allowed.

Hence in absence of any explanation for delay which is inordinate, this court refrains from exercising its extraordinary jurisdiction in entertaining the application. The nature of prayer made in the writ petition which is related to providing facilitie s for treatment in any medical institution/hospital and to adequately compensate the original writ petitioner, thus the prayer made by the original writ petitioner (now dead), is related t o his treatment and also to compensate, but after his death the relief sought for by him regar ding treatment in any super specialist hospital or to compensate him is no more to be said to be alive.

However, in the instant application it has been stated by the applicants that being pa rents, they are entitled to get the compensation for death of their son. Otherwise also it will be a case at best for awarding compensation due to medical negl igence but this Court sitting under Article 226 of the Constitution of India cannot adjudicate the medical negligence for the reason that the same pertains to adjudicating the dispute base d upon documents like the expert opinion and the deposition, etc. which cannot be done by the High Court sitting under Article 226 of the Constitution of India.

Ashok Kumar Gochhi v. State

Case brief

What is this about?

What did the court decide?

Ashok Kumar Gochhi v. State

Case brief

What is this about?

What did the court decide?

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