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2014 DIGILAW 223 (ORI)

Radha Krishna Behera v. Girigobardhan Panda

2014-04-03

B.R.SARANGI

body2014
JUDGMENT : Dr. B.R.SARANGI, J. - The petitioners being the plaintiffs in T.S.No. 43/9 of 1977-80 filed this application challenging the order dated 01.03.1990 passed by the learned Subordinate Judge, Kuchinda holding that the application filed under Order 22, Rule 4, CPC by the advocate for the plaintiff to substitute Sarojini Acharya in place of defendant No. 2, Alekha Acharya car-mot be treated as a petition filed by the plaintiff and as such it is to be construed that no application for substitution of L.Rs. was made by the plaintiffs within the prescribed period and that as no application was made within time for substitution of L.Rs. the suit abated as a whole against the defendants. They have also assailed the said judgment dated 18.09.2001 in Annexure-2 passed by the learned, District Judge, Sambalpur in Civil Revision No. 64 of 1993 setting aside the order dated 30.03.1993 in Misc. Case No.3 of 1992 passed by the learned Sub-Judge, Kuchinda allowing substitution setting aside abatement holding that the same cannot be sustained in view of the principle of res judicata and refusal to condone the delay. 2. The short fact involved in the case in hand is that opposite party No.4 (defendant No.4) Narsingha Charan Behera sold the suit land to opposite party No.1 (defendant No.1) Girigobardhan Panda showing the present plaintiffs as minors on 29.05.1976. But physically the possession has not been delivered. Defendant No.1 sold the property to defendant No. 2-Alekha Acharya on 26.05.1977. The plaintiffs filed the suit bearing No. T.S. No. 43/9 of 1977-80 against the defendants on 22.08.1977 before the learned Sub-ordinate Judge, Kuchinda seeking for a declaration of right, title and interest over the suit property. The plaintiffs claim that they and defendant No.5 were the sons and daughters of defendant No.4 through his first wife, namely, Maithili, who acquired the suit land measuring Ac. 0.94 decimals by a sale deed from Lal Udaya Chandar Dev of Deogarh on 26.01.1953 for a consideration of Rs. 1,000/ - and accordingly, she possessed the same in her exclusive right, title and interest. By virtue of her possession for more than 12 years, she also acquired title by adverse possession against the deceased defendants No.2. The suit was set ex parte as against defendant No.2 on 05.02.1981 thereby an ex parte decree was passed on 13.02.1981. Subsequently, Misc. 1,000/ - and accordingly, she possessed the same in her exclusive right, title and interest. By virtue of her possession for more than 12 years, she also acquired title by adverse possession against the deceased defendants No.2. The suit was set ex parte as against defendant No.2 on 05.02.1981 thereby an ex parte decree was passed on 13.02.1981. Subsequently, Misc. Case No. 23/1981 was filed to restore the suit which was dismissed for default on 16.04.1982. Then Misc. Case No. 21/4 of 1984 was filed on 09.01.1984 to restore the above Misc. case which was also refused. However, a Revision case was filed against the order passed in Misc. Case No. 21/4 of 1982 and this Court set aside the order dated 09.01.1984. During pendency of the said Misc. Case No. 23/1981, defendant No. 2-Alekh Acharya died on 06.04.1988 and defendant No. 2 was substituted by his wife Sarojini Acharya by her own application on 05.08.1988. However, by order dated 21.09.1989 the suit was restored to file subject to payment of Rs. 200/-. The cost was paid as directed on 20.10.89. Then a petition under Order 22, Rule 4 CPC-was filed on 18.01.90 to change the cause title as it reflected the name of the deceased defendant No. 2 and objection was also filed by defendant Nos. 2 and 3 to the said application. But, fact remains that on the basis of the application filed by the wife of the deceased defendant, namely, Sarojini Acharya has already been substituted in Misc. Case No. 23/1982. However, another application was filed under Order 22, Rule 4 CPC for substitution of defendant No.2 and an application under Order 22, Rule 3 CPC was filed by defendant Nos. 2 and 3 praying to pass orders for abatement of the suit. Both the applications were heard together and learned Sub-ordinate Judge, Kuchinda passed order on 01.03.1990 under Annexure-1 stating that the application under Order 22, Rule 4 should have been filed by the plaintiffs but, it was found that advocate has filed the application without verification. Therefore, according to law the petition dated 18.01.1990 cannot be treated as a petition praying for substitution. Therefore, according to law the petition dated 18.01.1990 cannot be treated as a petition praying for substitution. On the other hand, it was the plaintiffs or his authorized agent to file such, petition but none of the plaintiffs have filed the petition praying for substitution and the advocate has simply filed a petition that Sarojini Acharya be substituted in place of Defendant Nos. 2-Alekha Acharya. Therefore, the petition filed by the advocate cannot be treated to be a petition filed by the plaintiffs. Consequent thereof the petition, dated 18.01.1990 having not been treated as petition praying for substitution of L.Rs. of defendant No.2, the Court construed that no application for substitution was made by the plaintiffs within the prescribed period. As per the plaint all the defendants are joint tort-feasors and as no application was made within time for substitution of L.Rs., the suit stands abated in whole against the defendants. Misc. Case No. 03/1992 was filed on.15.04.1992 under Order 22, Rule 9 read with Section 151 CPC alongwith a petition under Section 5 of the Limitation Act to set aside the abatement by condoning the delay so caused. The said petition was allowed on 30.07.1993 setting aside the abatement and condoning the delay in Misc. Case No. 3/1992 and the suit was restored to file. Defendant Nos. 2 and 3 filed Civil Revision No. 64/1993 before the learned District Judge, Sambalpur challenging the order dated 30.07.1993 passed by the learned subordinate Judge, Kuchinda in Misc. Case No. 3 of 1992. When the said revision was pending for consideration as the defendants did not take any steps in the suit, it was set ex parte on 20.12.1993 and was posted to 22.12.1993 for judgment under Order 8, Rule 10 CPC, on which date the judgment was pronounced decreeing the suit. On 06.01.1994 the extract of order dated 03.01.1994 directing stay, of further proceeding is served in suit. After the suit was decreed by pronouncing the judgment on 22.12.1993, vide Annexure-2 the learned District Judge, Sambalpur passed order on 18.09.2001 in Civil Revision No. 64/1993 setting aside the order dated 30.07.1993 passed in Misc. Case No. 3 of 1992 condoning the delay and allowing the application for setting aside the abatement order dated 01.03.1990. Therefore, the plaintiffs seek to set aside the order dated 01.03.1990 as well as the order dated 18.09.2001 in the present writ petition. 3. Mr. Case No. 3 of 1992 condoning the delay and allowing the application for setting aside the abatement order dated 01.03.1990. Therefore, the plaintiffs seek to set aside the order dated 01.03.1990 as well as the order dated 18.09.2001 in the present writ petition. 3. Mr. K.Pattnaik, learned counsel for the petitioners submits that once the learned Court below after considering the materials available on record set aside the abatement by condoning the delay and restored the suit to file on 30.07.1993 which was subsequently decreed on 22.12.1993, without considering the same the impugned order dated 18.09.2001 passed by the learned District Judge, Sambalpur setting aside the order dated 30.07.1993 is misconceived one. He further submitted that while entertaining the civil revision if the learned District Judge did not pass any interim order with regard to stay of the further proceeding of the suit and finally the suit was proceed with and the judgment was passed decreeing the suit on 22.12.1993 by passing an order dated 18.09.2001 setting aside the order dated 30.07.1993 of the Sub-Judge in Misc. Case No.3 of 1992, the learned District Judge, Sambalpur has committed gross error which is apparent on the face of the record. Therefore, the plaintiffs seek to set aside the order dated 01.03.1990 by which he refused the substitution as the same had not been filed by the plaintiffs and declared the suit as abated against the defendants and which the substitution was allowed and the suit was restored vide Order dated 30.07.1993 in Misc. Case No. 3/1992 and the order passed in Civil Revision No. 64/1993 dated 18.09.2001 under Annexure-2 setting aside the order dated 30.07.1993 is bad in law. To substantiate his contentions the learned counsel for the petitioner has relied upon the case of Hema Dibya v. Amarendra Kishore Das and others AIR 1966 Orissa 55, Mithailal Dalsangar Singh and others v. Annabai Devram Kini and others, (2003) 10 SCC 691 and Ganeshprasad. Badrinarayan Lahoti (D) by L.Rs. v. Sanjeevprasad Jamnaprasad Chourasiya and another, (2004) 7 SCC 482 . 4. On being noticed, opposite parties have entered appearance but have not filed any counter affidavit to this application. However, Mr. S. Satpathy, learned counsel appearing on behalf of Dr. Gangadhar Tripathy, learned counsel for opposite party Nos. Badrinarayan Lahoti (D) by L.Rs. v. Sanjeevprasad Jamnaprasad Chourasiya and another, (2004) 7 SCC 482 . 4. On being noticed, opposite parties have entered appearance but have not filed any counter affidavit to this application. However, Mr. S. Satpathy, learned counsel appearing on behalf of Dr. Gangadhar Tripathy, learned counsel for opposite party Nos. 2 and 3 stated that the impugned order passed by the learned Court below is wholly and fully justified and this Court should not interfere with the same. 5. Considering the contentions raised by the parties and on perusing the record it is made clear that due to the death of defendant No.2 an application was filed for substitution to bring his legal heirs into the record. But by the time this application was filed the said defendant No.2 has already been substituted by his wife Sarojini Acharya on her own application in Misc. Case No. 23/1982 on 05.08.1988. Once the wife of deceased defendant No.2 has been impleaded as a party and participated in the proceeding irrespective of whether the application under order 22, Rule 4 CPC is filed by the advocate for the plaintiffs or the plaintiff himself which makes no difference to indicate the name of the L.Rs. of the deceased defendant No.2 rather the substitution has already taken place on the request of wife of defendant No.2 and the Court having acted upon the same only the cause title of the plaint has to be corrected. Therefore, whether the application filed by the petitioners under Order 20, Rule 4 has been duly sworn in or not, the Court should not go into the technicalities because the L.Rs. of the defendant No.2 being on record only the Court should have given permission to correct the cause title instead of rejecting the application filed under Order 20, Rule 4 CPC. The Court should not have rejected the same and passed order dated 01.03.1990 declaring the suit as abated as the petition for substitution has not been verified by the plaintiffs rather he should have regularized the cause title as the wife of defendant No.2 was on record on her own application. 6. In any case, the said order has been set aside on consideration of application under Order 22, Rule 9 in Misc. Case No. 3/1992 by condoning the delay and suit was restored to file for consideration. 6. In any case, the said order has been set aside on consideration of application under Order 22, Rule 9 in Misc. Case No. 3/1992 by condoning the delay and suit was restored to file for consideration. It is the bounden duty of the parties to co-operate with the Court for early disposal of the suit but defendant did not take any step and was set ex parte. Therefore, the suit was decreed ex parte on 23.09.1999. 7. Assailing the order dated 30.07.1993 setting aside the abatement by condoning the delay in Misc. Case No. 3/1992, defendant No.2 and 3 preferred Civil Revision No. 64/1993 before the learned District Judge, Sambalpur who without considering the fact in proper. perspective even though the suit has already been disposed of by decreeing the same on 22.03.1993, to set aside the order dated 30.07.1993 under which where the abatement order passed by the Court on 01.03.1990 was set aside. Such direction issued by the learned District Judge, Sambalpur in Civil Revision No. 64/1993 in Annexure-2 is clearly the outcome of non-application of mind. 8. Once the parties have already been impleaded, whether any further proceeding for substitution is necessary or not came up for consideration in Hema Dibya (supra) where this Court held that when an appeal is allowed the relief of restoration of suit was granted not in favour of the deceased plaintiff but in favour of the substituted plaintiff. In the very nature relief granted any further substitution in the plaint would not only be fantastic but would be illegal. It is stated that the appellate Court should have passed a formal order that the suit being restored, the cause title should be amended to bring it in accordance with the substitution made in the appeal. It was necessary that the legal representatives should have been again substituted in the suit. Applying the said analogy the wife of the deceased-defendant No.2 having already been impleaded as party and the same having been accepted, there is no need of filing application under Order 22, Rule 4 CPC for substitution. The cause title of the suit should have been corrected by filing an application for amendment and as such there is no question of filing of substitution petition to bring the legal heirs of deceased defendant no. 2 on record. The cause title of the suit should have been corrected by filing an application for amendment and as such there is no question of filing of substitution petition to bring the legal heirs of deceased defendant no. 2 on record. The apex Court in Mithailal Dalsangar Singh and others (supra) considering the provisions under Order 22 Rule 9 categorically held that the L.Rs. being brought on record at any stage of the proceedings enures for the benefit of the entire proceedings. Applying the said analogy since the wife of the deceased defendant No.2 has already been brought on record in Misc. Case No. 23/82 it was not necessary to file substitution petition to bring the L.Rs. on record. Rather the Court should pass a formal order to make necessary correction in the cause title by amending the same. Once defendant No.2 has been brought on record in Misc. Case proceeding, the same enures to the benefit of the entire proceeding. Similar view has also been taken by the apex Court in Ganeshprasad Badrinarayan Lahoti (supra). In view of aforesaid fact and circumstances of the case, since the L.Rs. of defendant No.2 has already been impleaded as party by her own application in Misc. Case No. 23/1982 and subsequent application filed under Order 22, Rule 4 CPC to bring her on record on substitution may not be necessary in view of the ratio decided in Mithailal Dalsangar Singh and others (supra). In view of that, the order under Annexure-1 which has been passed under misconception has been set aside by the Court below by order dated 30.07.1993. The judgment passed by the learned District Judge, Sambalpur in Civil Revision No. 64/1993 also cannot sustain in view of the analysis in foregoing paragraphs. In that view of matter the order passed by the learned Sub-ordinate Judge, Kuchinda under Annexure-1 in T.S. no. 43/9 of 1977-80 dated 01.03.1990 and the judgment passed by the learned District Judge, Sambalpur in Civil Revision No. 64/1993 on 18.09.2001 in Annexure-2 are hereby set aside. The writ application is allowed accordingly. Application allowed.