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2018 DIGILAW 1363 (JHR)

Shankar Prasad Singh v. Vijay Shankar Singh

2018-06-29

SHREE CHANDRASHEKHAR

body2018
ORDER : By an order dated 16.10.2008 further proceeding in Title Suit No.59 of 1975 was stayed by this Court. 2. Mr. S. K. Ughal, the learned counsel appears for the petitioner and Mr. D. K. Prasad and Mr. S.P. Roy, the learned counsels appear for the respondents. 3. The petitioner, who is defendant no.16 in Title Suit No.59 of 1975, is aggrieved of order dated 07.07.2007 by which an application under Order-XXII Rule 3, 4 and 9 CPC has been allowed. This was an ex-parte order passed by the trial court. The petitioner has challenged order dated 10.07.2008, by which his application seeking dismissal of the suit as abated has been dismissed. 4. It is an admitted fact that before order dated 07.07.2007 was passed defendant no.16 was not heard by the trial Judge and, in fact, none of the defendants had notice of the application for substitution filled by the plaintiffs. It also stands admitted that by that time notice upon the defendant no.16 was not served upon him. It is pleaded that in the proceeding of Title Suit No.59 of 1975 several plaintiffs as well as defendants had died and the record of the case was missing for long 17 years. These facts amply corroborate the stand taken by the defendant no.16 that he had no notice on the substitution applications dated 11.01.2007 and 24.01.2007 which were filed seeking setting-aside of abatement on account of death of the plaintiffs. Order dated 07.07.2007, by which the legal heirs and successors of the deceased-plaintiffs and defendants were substituted after condoning the delay in filing the aforesaid applications and setting-aside the abatement, does not reflect that the surviving defendants were heard by the trial court. This fact, that the defendants were not heard by the trial court when order dated 07.07.2007 was passed, stands affirmed on a bare reading of the said order; there is no reference of objection taken by the defendants on the applications filed under Order XXII Rule 3, 4 and 9 CPC. The defendant no.16 has taken a stand that long before plaintiff nos.2, 2(a), 6 and 10 had died and when applications dated 11.01.2007 and 24.01.2007 were filed defendant nos.5, 6, 10, 11, 12, 14, 15, 19, and 21 had also died. Still, his application has been dismissed on the ground that delay in filing the application for substitution has been condoned on equitable grounds. Still, his application has been dismissed on the ground that delay in filing the application for substitution has been condoned on equitable grounds. Evidently, the trial Judge has adopted a procedure which cannot be sanctioned in law. It has exercised a jurisdiction which is not legally vested in it. 5. In view of the aforesaid facts, the impugned orders dated 07.07.2007 and 10.07.2008 are set-aside. Applications dated 11.01.2007, 24.01.2007, 03.06.2008 and 04.06.2008 are restored to their original position. The parties shall appear before the trial court on 23.07.2018, when the trial Judge shall fix date for hearing of these applications. 6. The writ petition stands allowed in the aforesaid terms.