Research › Search › Judgment

Orissa High Court · body

2018 DIGILAW 163 (ORI)

Jagabandhu Parida v. Sukuti Parida

2018-02-07

BISWANATH RATH

body2018
JUDGMENT : Biswanath Rath, J. This civil miscellaneous petition involves a challenge to the order vide Annexure-3 passed by the learned Civil Judge (Senior Division), Bhadrak in Civil Suit No.146/2014-I thereby allowing withdrawal of the suit at the instance of the plaintiff. 2. Short background involved in this case is that the petitioner claiming to be one of the legal heir of the defendant no.1 in the court below submitted that the defendant no.1 died on 27.6.2014 and during pendency of the application for substitution in respect of the defendant no.1 at the instance of the plaintiff, the application under Order 23 Rule 1 of C.P.C. was finalized. As the suit has already been abated, there was no scope for the trial court to entertain the application under Order 23 Rule 1 of C.P.C. 3. Referring to the pleadings in the plaint and the claim involved therein, Shri Dash, learned counsel for the petitioner submitted that the legal heirs of the defendant no.1 since are necessary and proper party, the suit should not have been permitted to be withdrawn in absence of substitution. Also referring to a decision of this Court, in the case of Sri Sri Shyam Ray alias Shyamsundar jew Thakur versus Haramani Dei (dead) and after her, Jinet Samal & others as reported in 56 (1983)C.L.T.503 learned counsel for the petitioner contended that for the ratio decided therein, the decision has direct application to the case of the petitioner. Similarly, referring to another decision in the case of Tirtha Bararty and others versus Dingar Kanda and others as reported in 2017 (II) OLR 242 further submitted that in absence of substitution of the defendant no.1 in the case at hand following the principle laid down in the above reported case, the suit had already got abated leaving any scope for considering the application under Order 23 Rule 1 of C.P.C. It is under these premises, learned counsel for the petitioner submitted that the impugned order becomes bad and needs to be interfered with and set aside. 4. 4. Shri Rout, learned counsel for the contesting opposite party nos.1 to 2 taking this Court to the pleadings involving the plaint and the prayers made therein submitted that the suit being directed for a decree only as against the defendant no.2, death of defendant no.1 becomes immaterial and therefore, learned counsel for the opposite parties contended that there is no infirmity in passing the impugned order as the suit was very much existing on the date of disposal of the application under Order 23 Rule 1 of C.P.C. Further answering to the claim of the learned counsel for the petitioner based on two judgments, it is contended that none of the decision has any application to the case at hand. 5. Considering the rival contentions of the parties and on perusal of the copy of the plaint involving C.S. No.146I of 2014 this Court finds, not only the pleadings involved therein relates to a claim only involving the defendant no.2 but there is also specific prayer in the suit seeking a declaration to the effect that the registered sale deed no.10271300208 dated 22.1.2013 in the name of defendant no.2 as void and illegal. It is for the specific pleading and for the specific prayer in the suit, this Court declines to entertain the claim of the petitioner that the suit got abated for the non-substitution of the defendant no.1. 6. Now coming to scan the decision relied on by the learned counsel for the petitioner. Scan of the decision reported vide 56(1983) C.L.T.503 this Court finds, the fact involved therein involving death of a necessary party. Under the observation that the relief claimed in the suit since has a bearing involving the defendant no.2 and without substitution of defendant no.1 the suit got abated, this Court considering the fact involved in the case at hand, finds, there was no relief sought for as against the defendant no.1 and the suit was involving the claim pertaining to the defendant no.2 only. As a consequence, this Court observes, this decision rather helps the case of the opposite parties. Similarly, considering the other decision vide 2017 (II) OLR-242, for the observation of this Court made hereinabove that the suit was surviving for the relief involved therein on the date of consideration of the application under Order 23 Rule 1 of C.P.C., this decision has no application to the case of the petitioner. Similarly, considering the other decision vide 2017 (II) OLR-242, for the observation of this Court made hereinabove that the suit was surviving for the relief involved therein on the date of consideration of the application under Order 23 Rule 1 of C.P.C., this decision has no application to the case of the petitioner. 7. Perused the impugned order. For the recordings and the observations of this Court made hereinabove as well as for the support of the decision as reported in 56(1983) C.L.T.503 to the case of the opposite parties, this Court finds, there is no infirmity in the impugned order. Accordingly, the Civil Miscellaneous Petition stands dismissed. No cost.