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2015 DIGILAW 32 (ORI)

Supal Majhi v. Kushun Majhi

2015-01-16

D.DASH

body2015
JUDGMENT The present appeal arises out of the judgment passed by the learned Additional District Judge, Rairangpur in RFA No. 04 of 2004 setting aside an order of refusal of substitution of respondent No. 1 to 3 in place of original plaintiff and passing an order of abatement of suit as a consequence thereto. 2. The controversy concerns with substitution of the respondent no. 1 to 3 upon the death of the original plaintiff of Title Suit No.68 of 1996•on,the file of learned Civil Judge (Senior Division), Rairangpur. She had filed the suit against this appellant for declaration of a deed of adoption to be invalid in the eye of law, with relief of declaration of right, title and interest in possession of the suit property. During pendency of suit the plaintiff died. The respondent nos. 1 to 3 filed a petition for their substitution in place of original plaintiff being the legal heir of the last male owner of the suit properties that is the husband of the original plaintiff since the parties are members of Scheduled Tribe and the provisions of Hindu Succession Act, 1956 do not apply to them and the widow of the last male owner of the property was a limited owner on whose death the properties in her hands reverted back to the heirs of the last male owners as standing on the date of the death of the widow. 3. The trial Court rejected the petition on the ground that the claim of the respondent nos. 1 to 3 are not as much equal with the prayer in the plaint and observed that in case they are having any claim over the suit property, they may go for a separate suit but cannot pursue the present one. Accordingly, even without expiry of the period, the trial Court passed an order of a abatement of the suit which is of course not the proper course as adopted. The trial Court should have waited for the period as provided in law for substitution for any other to come forward with such a claim. However, in this appeal that is not the concern in view of challenge levied by the appellant. 4. The respondent nos. 1 to 3 then carried an appeal before the learned Additional District Judge, Rairangpur. The trial Court should have waited for the period as provided in law for substitution for any other to come forward with such a claim. However, in this appeal that is not the concern in view of challenge levied by the appellant. 4. The respondent nos. 1 to 3 then carried an appeal before the learned Additional District Judge, Rairangpur. In the said appeal a prima facie finding being given by looking at the judgment and decree passed in another Title Suit No.68 of 1997 that these respondent nos. 1 to 3 are the reversioners, the Court accepted the petition for the substitution. So setting aside the order of the abatement of the suit, the trial Court was directed to proceed with the suit carrying out the substitution for its disposal in accordance with law. 5. Learned counsel for the appellant seriously challenges the maintainability of the appeal before the learned Additional District Judge. According to him, the order of abatement of the suit refusing to substitute the respondent nos. 1 to 3 in place of the original plaintiff is not appealable and, therefore, the order passed by the appellate Court is without jurisdiction. He further submits that here there is a serious dispute with regard to the status of the respondent nos. 1 to 3 that they are not the reversioners and rather are strangers to the property, having an eye to grab the same by appellant the petitioner of his legitimate claim as the adopted son of the original plaintiff and her husband. He also submits that the judgment and decree in T.S. No. 68 of 1997 which has been taken note of by the appellate Court was passed behind the back of the appellant and was not within the knowledge of this appellant and those were rather created for the purpose to be used an weapon anticipating the claim of the present appellant and in such an eventuality. He also contends that the appellate Court ought not to have passed the order without adhering to the provision of Rule 5 of Order 22 of Civil Procedure. Therefore, he urges that there remains error apparent on the face of the record and the order suffers from gross illegality and infirmity which is liable to be quashed. 6. He also contends that the appellate Court ought not to have passed the order without adhering to the provision of Rule 5 of Order 22 of Civil Procedure. Therefore, he urges that there remains error apparent on the face of the record and the order suffers from gross illegality and infirmity which is liable to be quashed. 6. Learned counsel for the respondent nos.1 to 3 submits that by such, order of abatement when the suit is taken out of file, the only course available to the parties aggrieved thereby is to file a regular appeal and the appellate Court was within its jurisdiction to examine the legality of the said order of refusal for substitution and abatement of suit as a consequence thereto. He further submits that the issue relating to the status of the respondent nos. 1 to 3 cannot be said to have been finally decided by such order of appellate Court and that is open for a decision in the suit on the basis of evidence as the appellate Court’s finding to that effect is confined for the limited purpose of substitution that too it is by a summary order. It is his next submission that there remains no infirmity or illegality in the order of appellate Court so as to be interfered with. 7. Learned counsel for interveners (arrayed as parties here in writ proceeding as O.P. no. 4 to 6) submits that they are the real reversioners and the right to sue survives in their favour. 8. On such rival submission it is first of all necessary to decide as to whether the appeal was maintainable in the Court of Additional District Judge challenging the order of abatement of the suit. It is true that by such an order of abatement of the suit puts an end to the• suit and no more survives. On giving a harmonious reading to the provision Order 22 Rule 9 and Section 96 of the Code of Civil Procedure .there remains no difficulty and the position appears to be crystal clear for concluding that the order of disposal of the suit by way of abatement is appealable as if a decree. Therefore, the first submission• of the learned counsel for the appellant is repelled. Reference may be made to the case of Bipin Behari Sahu Vrs. Dr. Rajendra Mukar Sahu; 2001(II) OLR 214 . 9. Therefore, the first submission• of the learned counsel for the appellant is repelled. Reference may be made to the case of Bipin Behari Sahu Vrs. Dr. Rajendra Mukar Sahu; 2001(II) OLR 214 . 9. Now coming to the second contention, the Court while passmg an order of substitution in case of denial of status of the persons seeking their impletion as parties to the suit is under obligation to make an enquiry as contemplated under Rule 5 and Order 22 of the Code. So, when the status of the respondent nos. 1 to 3 are under challenge, an enquiry as required under the rule is imperative. The position of law is settled that in such an enquiry of summary nature, the determination of the issue is only for the purpose of deciding -as to whether the suit is to further continue or not and that is also open to be called in question at the desire of the parties in the trial of the suit. Said determination of status is thus neither conclusive nor operates as res judicata. 10. Perusal of the order of the learned Additional District Judge reveals that he having simply perused the judgment and decree passed in T.S. No. 68 of 1997 has arrived at a conclusion as regards the right to sue to be surviving in favour of respondent nos. 1 to 3 as reversioners as if to have so arrived on the basis of an enquiry made under Rule 5 of Order 22 of the Code. In that respect it has been observed that the petitioners have been so adjudged in respect of their status as the next reversioners in the said suit. The course adopted does not appear to be the legally approved one that in the appeal against the abatement of suit refusing the substitution, the appellate Court on perusal of certain documents can form an opinion as to whether the parties are to be arrayed being the legal representative or not of the deceased having the right to sue here as the reversioners. The appellate Court was thus not right in dispensing with an enquiry as contemplated under Rule 5 of order 22 of the Code giving due opportunity to the appellant to prima facie substantiate his case negating the claim of the respondent no. 1 to 3 seeking leave to be impleded as the plaintiffs. The appellate Court was thus not right in dispensing with an enquiry as contemplated under Rule 5 of order 22 of the Code giving due opportunity to the appellant to prima facie substantiate his case negating the claim of the respondent no. 1 to 3 seeking leave to be impleded as the plaintiffs. The finding given as regards right to sue surviving with the respondent nos. 1 to 3 cannot be said to have been the outcome of an enquiry as contemplated under the above rule and perusal of the documents without seeking response from the adversary and without giving due scope to show to the contrary, if any, cannot be taken as the substitute of said inquiry as envisaged. Therefore, this Court finds the above order in the appeal passed by learned Additional District Judge as vulnerable and the same is thus liable to be set aside which is hereby done. The matter is remitted back to the learned Civil Judge (Senior Division}, Rairangpur to take up an enquiry as contemplated under the rule as aforesaid and pass necessary order in accordance with law. The interveners who are now claiming that they are the true reversioners are at liberty to advance their claim in the Court below and participate in the enquiry to be taken into consideration for a just decision in the matter. 11. In the result the appeal is allowed and in the circumstances without cost. Looking at the age of the litigation, it is directed that the parties would appear in the Court below on 09.02.2015 to receive further instruction and to co-operate with the trial Court in proceeding with the matter. It is further observed that the observations made above would have absolutely no bearing as to the merit of the claim of the parties with regard to the question of substitution of party/ies in place of deceased plaintiff in pursuing the suit. Appeal allowed.