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2016 DIGILAW 195 (ORI)

Prasanta Kumar Behera v. Fakira Sethi

2016-03-10

A.K.RATH

body2016
JUDGMENT : A.K. Rath, J. Challenging, inter alia, the order dated 17.2.2010 passed by the learned Civil Judge (Junior Division), Puri in T.S. No.241 of 2001, the instant petition has been filed under Article 227 of the Constitution of India. By the said order, learned trial court refused to accept the written statement filed by the defendant no.5-petitioner. 2. Opposite parties 1 and 2 as plaintiffs instituted the suit for declaration of right, title and interest, confirmation of possession, in the alternative for recovery of possession and permanent injunction in the court of the learned Civil Judge (Junior Division), Puri. In the said suit, Agadhu Behera was the defendant no.1. During pendency of the suit, he died. Thereafter, the plaintiffs filed an application for substitution of the legal heirs of defendant no.1. In spite of valid service of notice, legal heirs of defendant no.1 did not appear. But then they have been impleaded as defendant nos.1(a) and 1(b). While the matter stood thus, the petitioner claiming to be the son of Agadhu Behera filed an application under Order 1 Rule 10 CPC for impleadment. To substantiate the claim, he filed a transfer certificate of the high school and the medical certificate issued by the Assistant Surgeon. The plaintiffs filed an objection to the same. Learned trial court came to hold that since the petitioner claims himself to be the legal representative of the deceased, dispute arose. From the document filed by the petitioner, it cannot be clearly ascertained that he is the legal representative of the defendant no.1. Liberty was granted to the petitioner to substantiate the case at the time of hearing of the suit. However, in the next paragraph, learned trial court held that though it cannot be ascertained that the present petitioner is the legal representative of the deceased defendant no.1 but an inference can be drawn from the transfer certificate that he is the son of the deceased defendant no.1 and as such necessary party to the suit. Held so, learned trial court allowed the application and impleaded the petitioner as defendant no.5. Thereafter, the petitioner filed a written statement contending that some facts had not been mentioned and the written statement filed by him may form a part of the earlier written statement filed by his father. The plaintiffs filed an objection to the same with a prayer not to accept the written statement. Thereafter, the petitioner filed a written statement contending that some facts had not been mentioned and the written statement filed by him may form a part of the earlier written statement filed by his father. The plaintiffs filed an objection to the same with a prayer not to accept the written statement. By order dated 17.2.2010, learned trial court allowed the application of the plaintiffs and refused to accept the written statement filed by the defendant no.5-petitioner. With this factual scenario, this petition has been filed. 3. Heard Mr. Senapati, learned counsel for the petitioner and Mr. Chaitanya, learned counsel for the opposite parties 1 and 2. None appears for the opposite parties 3 to 6. 4. Mr. Senapati, learned counsel for the petitioner, submits that the petitioner is the son of defendant no.1. After death of defendant no.1, the plaintiffs filed an application for substitution to implead the impostors describing them as the legal representative of the deceased. When it was brought to the notice of the petitioner, he filed an application under Order 1 Rule 10 CPC for intervention. The same was allowed. Thereafter, the petitioner filed a written statement since the entire facts were not correctly brought by the deceased defendant. Learned trial court has committed manifest illegality in not accepting the written statement. 5. Per contra Mr. Chaitanya, learned counsel for the opposite parties supports the impugned order passed by the learned trial court. 6. The question does arise as to when defendant died during pendency of the suit and an application for substitution of the L.Rs of the deceased has been filed, whether the court shall determine the said question under Order 22 Rule 5 CPC or defer the same, frame an issue and proceed with the trial of the suit. 7. The subject-matter of dispute is no more res integra. This Court in Krushna Chandra Pati (dead) through LRs v. Smt. Basanta Panigrahi and others (WP(C) No.2114 of 2006 disposed of 20.11.2015) held as follows : “6. Order 22 Rule 5 C.P.C. deals with determination of question as to legal representative. The said rule provides that where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant, such question shall be determined by the Court. The word ‘determine’ cannot be equated with the word ‘decide’. The said rule provides that where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant, such question shall be determined by the Court. The word ‘determine’ cannot be equated with the word ‘decide’. An inquiry in the matter of determination of legal representative under this rule is summary in nature. 7. In Sitraram Beura Vrs. Birakishore Beura, AIR 1977 Orissa 65, it has been held that if a dispute is raised as to whether any person is or is not the legal representative of the deceased party, it should be judicially determined by the court under Order 22, Rule 5 of the Code of Civil Procedure. In the said case, on the death of a party, substitution order was made under Order 22 Rule 3 without noticing all the parties by suppressing some material facts. When a petition was filed by the rival claimant claiming to be the legal heir, dispute was raised as to who was the legal representative of the deceased. This Court held that it was incumbent upon the court to have an enquiry as contemplated under Order 22 Rule 5 of the Code of Civil Procedure. The same view was reiterated in Sukanta Chandra Sahoo Vrs. J.K. Routray and others, 1984 (I) OLR-305. 8. The case of the petitioner may be examined on the anvil of the decision cited supra. The plea of the petitioner is that he is the son of the deceased defendant no.1 but clandestinely the plaintiffs filed an application for substitution to implead the impostors. Thereafter, the petitioner made an application for intervention. In such a contingency the learned trial court ought to have decided the said question under Order 22 Rule 5 CPC. Though the decision of this Court in the case of Sukanta Chandra Sahoo Vrs. J.K. Routray and others, 1984 (I) OLR-305 was cited before the learned trial court, that when there is a dispute as to who is the legal representative then the court has to conduct an enquiry, but the learned trial court has not considered the matter in its proper perspective. The first part of the order contradicts the second part of the order. The first part of the order contradicts the second part of the order. In one paragraph, learned trial court came to hold that from the document filed by the petitioner it cannot be clearly ascertained that the petitioner is the legal representative of the deceased defendant no.1. But then in the subsequent paragraph it came to hold that the petitioner being the son of the deceased defendant no.1 is a necessary party. 9. In view of the same, learned trial court is directed to hold an enquiry to ascertain as to whether the petitioner is the legal representative of the deceased defendant no.1 and pass order in accordance with law. Thereafter learned trial court shall decide the acceptance of the written statement. The petition is disposed of.