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2014 DIGILAW 242 (ORI)

JAGABANDHU ROUT v. RANJAN KUMAR ROUT

2014-04-10

SANJU PANDA

body2014
ORDER Sanju Panda, J. - The appellant is the petitioner in this writ petition. He has challenged the order dated 26.04.2012 passed by the Learned Additional District Judge, Kendrapara in R.F.A. No. 45 of 2005 rejecting his application to substitute the legal heirs of the deceased - respondent No. 7. 2. On perusal of the impugned order, it appears that the aforesaid appeal was directed against the judgment and decree passed by the Learned Civil Judge, (Senior Division), Kendrapara in T.S. No. 112 of 1993. During pendency of the appeal, respondent No. 7, Rodani Bewadied. The appellant filed application to substitute the legal heirs of 'the said decease - respondent along with an application under Section- 5 of the Limitation Act to condone the delay in filing the substitution application. 3. It appears that the respondent died on dt. 04.02.2011 and right to sue survives to the legal heirs. The appellant accordingly filed application to substitute the legal heirs only on 30th March, 2012. By the said time, the statutory period to substitute the legal heirs was already over and the order of abatement was passed. The statutory period to set aside the abatement was also over. However, the appellant filed application only under Order-22, Rule- 4 of the Code of Civil Procedure in view of Rule- 11 of the said Order which stipulates that the order is applicable to the appeal. Therefore, the appellant should have file an application to set aside the abatement along with an application for substitution and an application under Section- 5 of the Limitation Act as stipulated under Order-22, Rule- 9(3) of the Code of Civil Procedure. The appellate Court rejected the application for substitution as application for setting aside the abatement had not been filed and observed that the appellant is very casual and callous in taking steps for substitution. 4. Learned Counsel for the petitioner submits that the petitioner is a rustic villager and he engaged counsel to take appropriate steps in the appeal. However, due to inadvertent mistake of the counsel, application for setting aside abatement could not be filed. The Court below should have given a change to the appellant to file such application instead of rejecting the application for substitution of the deceased-respondent No. 7. 5. However, due to inadvertent mistake of the counsel, application for setting aside abatement could not be filed. The Court below should have given a change to the appellant to file such application instead of rejecting the application for substitution of the deceased-respondent No. 7. 5. Learned counsel for the opposite parties while supporting the impugned order made an erudite submission that the application for setting aside the abatement order was not filed within the statutory period and for substitution of the legal heirs by the appellant nor the appellant has shown sufficient cause for the inordinate delay in filing the application. Therefore, the order need not be interfered with. 6. Considering the aforesaid rival submissions of the parties and after going through the impugned orders, it appears that an application for substitution of the legal heirs was made after the statutory period by that time abatement order was passed. Though the appellant had not shown sufficient cause to condone the delay in filing application under Section 5 of the Limitation Act, however, no application was filed to set aside the order of abatement. The appellate Court ought to have considered that procedure laid down in the Code of Civil Procedure is a handmade of justice. The same is not be utilized to obstruct the free flow of justice. Formality, no doubt, is a hallmark of authenticity. That does not mean that party should suffer merely because he has not adheres to the formalities laid down in the Code of Civil Procedure. Procedure is never mandatory in nature. Therefore, the appellate Court should have given a chance to the appellant to file an application under Order 22, Rule- 9(2) of the Code of Civil Procedure to set aside the abatement and in case the appellant shows sufficient cause, the same should have been considered by he Court. The appellant should not suffer for the inadvertent mistake of the counsel. The prejudice caused to the respondent could have been mitigated by awarding cost. 7. In view of the above discussions, this Court sets aside the impugned order and directs the petitioner-appellant to file better application under Order-22, Rule- 9(2) of the Code of Civil Procedure before the appellate Court within a period of four weeks from today in such event the said Court shall allow the same with cost and proceed with the hearing the appeal on merits. Since this is a appeal of the year 2005, the appellate Court is directed to dispose of the same as expeditiously as possible, preferably by the end of August, 2014. 8. With the aforesaid observation, the writ petition as well as Misc. Case stands disposed of. Final Result : Disposed off