Disposed

Dasaratha Mohanta v. Biseswar Mohanta

Orissa HC20 Mar 2023CMAPL/121/2020

Case brief

AI extract

What is this about?

This court dismissed an interlocutory application for provisional substitution of legal heirs as petitioners. However, in a separate disposal, the court restored a second appeal against the deceased petitioner to file, imposing a cost of Rs. 3000 on the restoration, considering the delay non-fatal.

What did the court decide?

CMAPL No.71/2023 allowed; CMAPL No.121/2020 allowed; Second Appeal restored to file upon payment of Rs. 3000 costs within seven days.

Dasaratha Mohanta Vs Biseswar Mohanta — Civil Procedure and Limitation | Orissa HC (2023)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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CMAPL No.121 of 2020

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Dasaratha Mohanta

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…. Petitioner

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Mr.B.S.Das, Advocate, Advocate

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-versus-

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Buseswar Mohanta

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…. Opposite Parties Mr.S.K.Nayak, Advocate

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CORAM:

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JUSTICE A.K. MOHAPATRA

Order No.

ORDER

20.03.2023

I.A.NO.71 OF 2023 :

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This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode).

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The above noted Interlocutory Application has been filed for substitution of the legal heirs of deceased Petitioner Dasaratha Mohanta.

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On perusal of the Interlocutory Application, it appears that in the Second Appeal bearing S.A.No.369 of 2000, which was dismissed for default for non-compliance of peremptory order dated 09.10.2017. Thereafter, the Petitioner has filed CMAPL No.121 of 2020 for restoration of Second Appeal. During pendency of the CMAPL, the Petitioner namely Dasarath Mohanta has died on 20.09.2017 leaving behind his legal heirs. The names and address of the legal heirs have been furnished. Learned counsel for the Petitioner filed legal heir certificate issued by the R.I., Rairangpur. Further, the name of the legal

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heirs are to be substituted in place of the deceased Petitioner as Petitioner Nos.1(a) to 1(d).

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Learned counsel appearing for the Opposite Parties objected to the substitution of L.Rs on the ground of delay. Although it has been disputed the fact that the legal heirs are sought to the impleaded as Petitioners in place of the deceased Petitioner-Dasarath Mohanta as legal heirs of the deceased-Petitioner, however, this Interlocutory Application having been filed several years after the death of the Petitioner, learned counsel for the Opposite Parties submitted that the same is barred by limitation. Further, this application is also not supported by any application for condonation of delay as well as for setting aside abatement.

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Considering the submissions made by the learned counsel for the parties for the limited purpose of the CMAPL, the Petitioner Nos.1(a) to 1(d) are provisionally added as Opposite Party No.1(a) to 1(d), however, their substitution shall be subject to the order to be passed by the competent Bench taking up Second Appeal.

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Accordingly for the aforesaid limited purpose, the Petitioner No.1(a) to 1(d) are provisional substituted as Petitioners to continue with the present CMAPL. Accordingly, their names as reflected in the cause title is accepted for the aforesaid limited purposes.

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The Interlocutory Application is accordingly disposed of.

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CMAPL NO.121 OF 2020

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Heard Mr.B.S.Das, learned counsel appearing for the legal heirs of deceased Dasaratha Mohanta as well Mr Sukanta Ku. Nauyak, learned counsel appearing for the Opposite Parties.

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On perusal of the CMAPL, it appears that the Second Appeal filed by the deceased Petitioner challenging the judgment and decree passed by the learned court below was dismissed for non compliance of peremptory order dated 09.10.2017. Further, it has been stated that such

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peremptory order was not within the knowledge of the Petitioner. Therefore, the same could not be complied with. Learned counsel for the Petitioner also contended that by the time such peremptory order was passed, the Petitioner had already died on 20.09.2017. Therefore, the order dated 09.10.2017 having been passed against a dead man is nullity in the eye of law.

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Learned counsel for the Opposite Party on the other hand raised objection with regard to delay in approaching this Court. He further submitted that although the appeal was dismissed for non-compliance of the peremptory order dated 09.10.2017, the Petitioner has approached this Court only recently. He further submits that there is a delay of 850 days in approaching this Court by filing the present CMAPL.

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Having heard learned counsel for the parties and upon a careful consideration of the contentions raised by the learned counsel appearing for both sides, this Court in the larger interest of justice deems it proper to allow the CMAPL and to restore the Second Appeal to file subject to the Petitioners paying a cost of Rs.3000/- (Rupees three thousand) to the learned counsel appearing for the Opposite Parties within a period of seven days from today. Subject to payment such cost, the Second Appeal be restored to file and the same be placed before the appropriate Bench for passing necessary orders.

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With the aforesaid observation, the CMAPL is disposed of.

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( A.K. Mohapatra ) Judge

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RKS

Dasaratha Mohanta v. Biseswar Mohanta

Case brief

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Dasaratha Mohanta v. Biseswar Mohanta

Case brief

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