CMP filed to set aside order rejecting petition for substitution of deceased plaintiff. High Court allowed substitution and quashed impugned order to enable impleadment.
CMP allowed; impugned order set aside; direction to trial court to permit substitution of petitioners in place of deceased plaintiff
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IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO. 297 OF 2016
Pitambar Sahoo and others
…. Petitioners Mr. S. Chakravarty, Advocate
-versus-
Niranjan Sahoo and others
…. Opp. Parties None
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No.
10.08.2021
Page 1 of 3
// 2 //
allowed on 19th September, 2015. During pendency of the petition under Order IX Rule 13 C.P.C., the Plaintiff died and the Defendants-Opposite Parties, who were Petitioners in the petition under Order IX Rule 13 C.P.C., filed an application under Order XXII Rule 4 C.P.C. for substitution of the deceased Plaintiff. Accordingly, vide order dated 10th July, 2014, the present Petitioners were substituted in place of the deceased Plaintiff. When the ex parte decree was set aside, the Petitioners filed the aforesaid application to implead them as Plaintiffs in place of the original Plaintiff, who died during pendency of the proceeding in CMA No. 149 of 2013 and to regularize the suit. Learned Civil Judge holding that since the Plaintiff died in the year, 2014 and the petition under Order XXII Rule 3 C.P.C. did not accompany a petition under Order XXII Rule 9 C.P.C. for setting aside the abatement, no substitution can be made. Accordingly, he dismissed the petition under Order 1 Rule 10 C.P.C. read with Order XXII Rule 3 C.P.C. He further submits that the Petitioners had no scope to file an application in time in T.S. No. 187 of 2004 as it was disposed of ex parte and the petition under Order IX Rule 13 C.P.C. was pending. Further, the Petitioners were substituted in the said proceeding under Order IX Rules 13 C.P.C. within the stipulated period. Only in order to regularize the suit, the aforesaid petitions were filed by the present Petitioners for their impleadment in the suit in place of the deceased Plaintiff. Learned trial court without considering the same from its proper prospective rejected the petitions. Hence, this CMP has been filed.
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opinion that when the Petitioners were substituted in CMA No. 149 of 2013 filed under Order IX Rule 13 C.P.C. and learned Civil Judge should have taken a pragmatic view and given opportunity to the Petitioners to file an application under Order XXII Rule 9 C.P.C. for setting aside the order of abatement. The Petitioners had also no scope to file the petition for substitution in time in the suit as it was decreed ex parte by the time the original Plaintiff died. Thus, this Court feels it proper to allow the Petitioners to be substituted in the suit in place of the deceased Plaintiff. In that view of the matter, the impugned order is set aside.
Urgent certified copy of this order be granted on proper application.
(K.R. Mohapatra) Judge
bks
Page 3 of 3
2 issues framed by the court
Whether petitioners can be substituted in place of deceased plaintiff to regularize suit where abatement order was not challenged
Whether impugned order directing dismissal of substitution petition should be set aside
4 provisions across 2 enactments
Pitambar Sahoo and others
Niranjan Sahoo and others
K.R. Mohapatra
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
