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2017 DIGILAW 961 (ORI)

Cuttack Development Authority v. Manu Singh

2017-08-30

BISWANATH RATH

body2017
ORDER 30.08.2017 Heard Sri D. Mohapatra, learned counsel for the petitioner and Sri A.P. Bose, learned counsel appearing for the opposite parties. 2. This Civil Miscellaneous Petition involves an order passed by the lower appellate authority involving the proceeding under Order 39, Rule 1 and 2 of the Code of Civil Procedure. Assailing the impugned order, Sri D. Mohapatra, learned counsel for the petitioner submitted that the said order has been passed by the appellate authority on wrong reading of the direction of this Court in W.P.(C) Nos. 29138 of 2011 and 17850 of 2015. Sri Mohapatra, learned counsel further submitted that the petitioners involved therein and the dispute raised therein have nothing to do with the case at hand. It is under this premises, Sri Mohapatra, learned counsel requested this Court for interference in the impugned order and setting aside the same. 3. In his opposition, Sri A.P. Bose, learned counsel appearing for the plaintiff-opposite parties though not objected the submission of Sri Mohapatra, on the merit of the order for being passed without considering the relevant materials but however, raised a preliminary objection that for the death of opposite party no. 6 in the meantime, unless the petitioner is making substitution in respect of the opposite party no. 6, the matter cannot be heard. 4. Considering the question of necessity of substitution for the death of one of the opposite party during pendency of the Civil Miscellaneous Petition, this Court reading of the provision contained in Order 22, Rule 3 of the Code of Civil Procedure finds the provision contained therein has the application to the suits. Further, looking to a decision of this Court in the case of Krushna Priya Dibya and others v. Fakira Sahu, Vol. 33 (1991) O.J.D. 18, a single Bench of this Court considering the necessity of substitution in a revision under Section 115 of the Code of Civil Procedure has come to held that the provision contained under Order 22, Rule 3 and 4 have no application to revisions. Same analogy has also to be extended to the application under Article 227 of the Constitution of India. Looking to a further decision of this Court in the case of Harihar Prasad Singh and others. Same analogy has also to be extended to the application under Article 227 of the Constitution of India. Looking to a further decision of this Court in the case of Harihar Prasad Singh and others. V. Balmiki Prasad Singh and others, AIR 1975 SC 733 , this Court also finds for substantial representation of the petitioners, there is no requirement of substitution of one of the petitioner involving a Civil Miscellaneous Petition and Civil Miscellaneous petition can be decided even in absence of substitution leaving the scope of substation to be taking place in the suit. 5. Considering the submission of learned counsel for the parties and taking into consideration the above legal position involving the substitution issue, this Court finds this proceeding is a Miscellaneous Proceeding and substitution under Order 22 of the Code of Civil Procedure relates to the original proceeding. 6. So far as objection of Sri Mohapatra, learned counsel on the impugned order, taking into consideration the decision involved in W.P.(C) Nos. 29138 of 2011 and 17850 of 2015, there is no dispute to the contention of Sri Mohapatra that the dispute involved therein or the direction involved therein has nothing to the suit presently dealt involving the parties herein. Thus, this Court observes that there has been determination of the issue involved relying on unconnected materials. 7. Under the circumstances, this Court finds, the impugned order is not sustainable. However, since the fresh adjudication of the F.A.O. No. 05 of 2017 is required, this Court remits the matter back to the learned Additional District Judge, Athagarh for fresh adjudication of the appeal involved strictly within the pleading available for the purpose and taking into consideration of the submission to be made therein. 8. Keeping in view the urgency involved in the matter, a fresh order be passed within six weeks. Both the parties are directed to appear in the Court below on 11th of September, 2017 along with a certified copy of this order. Issue urgent certified copy of this order on proper application. Ordered accordingly.