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2023 DIGILAW 227 (ORI)

Kulamani Dash v. Sakuntala Lenka (Dead)

2023-12-15

K.R.MOHAPATRA

body2023
JUDGMENT K.R. Mohapatra, J. This matter is taken up through hybrid mode. 2. Order dated 17th May, 2011 (Annexure-6) passed by learned 2nd Additional Civil Judge (Senior Division), Cuttack in T.S. No.18 of 1993 is under challenge in this writ petition, whereby an application filed by the Plaintiff-Petitioner under Order 1 Rule 10 CPC to bring on record the legal heirs of deceased Defendant No.3, has been rejected. 3. It is submitted by Mr. Bhuyan, learned counsel for the Plaintiff-Petitioner that petition dated 19th April, 2011 was filed to implead legal heirs of deceased Defendant Nos.3 and 5 as Defendants. By order under Annexure-6 the said application was allowed in part permitting the Petitioner to bring on record the legal heirs of deceased Defendant No.5 only. However, prayer to implead the legal heirs of deceased Defendant No.3 was rejected. Hence, this writ petition has been filed. 4. It is his submission that since Defendant No.3 during his life time was set ex parte, the Plaintiff-Petitioner had filed an application under Order XXII Rule 4 (4) CPC to dispense with his substitution. But, the said application was rejected and due to non-substitution the suit abated against deceased Defendant No.3 on 12th November, 1998. The Plaintiff-Petitioner, however, filed an application under Order I Rule 10 CPC to implead the legal heirs of deceased Defendant Nos.3 and 5 to the suit, which is filed for partition. Since the branch of Defendant Nos.3 and 5 are required to be represented, they should have been impleaded as parties to the suit. Learned trial Court resorting to hyper technicality, rejected the application so far as impletion of legal heirs of deceased Defendant No.3 is concerned. However, the application to implead the legal heirs of deceased Defendant No.5 was allowed. 5. Mr. Bhuyan, learned counsel for the Plaintiff-Petitioner relied upon the case of Bhagwan Swaroop and others -v- Mool Chand and others, reported in AIR 1983 SC 355 , in which the Hon'ble apex Court held as under; "12. It is no doubt true that a code of procedure "is designed to facilitate justice and further its ends and it is not a penal enactment for punishment and penalty and not a thing designed to trip people up". Procedural laws are no doubt devised and enacted for the purposes of advancing justice. Procedural laws, however, are also laws and are enacted to be obeyed and implemented. Procedural laws are no doubt devised and enacted for the purposes of advancing justice. Procedural laws, however, are also laws and are enacted to be obeyed and implemented. The laws of procedure by themselves do not create any impediment or obstruction in the matter of doing justice to the parties. On the other hand, the main purpose and object of enacting procedural laws is to see that justice is done to the parties. In the absence of procedural laws regulating procedure as to dealing with any dispute between the parties, the cause of justice suffers and justice will be in a state of confusion and quandary. Difficulties arise when parties are at default in complying with the laws of procedure. As procedure is aptly described to be the hand-maid of justice, the court may in appropriate cases ignore or excuse a mere irregularity in the observance of the procedural law in the larger interest of justice. It is, however, always to be borne in mind that procedural laws are as valid as any other law and are enacted to be observed and have not been enacted merely to be brushed aside by the Court. Justice means justice to the parties in any particular case and justice according to law. If procedural laws are properly observed, as they should be observed, no problem arises for the court for considering whether any lapse in the observance of the procedural law needs to be excused or overlooked. As I have already observed depending on the facts and circumstances of a particular case in the larger interests of administration of justice the Court may and the Court in fact does, excuse or overlook a mere irregularity or a trivial breach in the observance of any procedural law for doing real and substantial justice to the parties and the Court passes proper orders which will serve the interests of justice best. 13. Excuse of lapses in compliance with the laws of procedure, as a matter of course, with the avowed object of doing substantial justice to the parties may in many cases lead to miscarriage of justice. 14. Civil Procedure Code requires that in the event of death of a particular party, heirs and legal representatives of the deceased have to be brought on record within a particular period, provided the cause of action survives. 14. Civil Procedure Code requires that in the event of death of a particular party, heirs and legal representatives of the deceased have to be brought on record within a particular period, provided the cause of action survives. If the legal representatives are not brought on record within the stipulated period, certain consequences follow and the action abates either wholly or partially depending on the facts and circumstances of a particular case. The Code further provides that an application may be made for setting aside the abatement within a stipulated period. It is now well settled that an abatement can be set aside at any time even beyond the period prescribed for making an application for setting aside the abatement, if sufficient cause is shown explaining the delay in the making of the application. If, irrespective of the provisions of the Code and the merits of the case, abatements are to be set aside as a matter of course merely on the ground that abatement is only a consequence of non-compliance of law of procedure and substantial justice is denied to the parties, the result may really amount to a denial of justice and in an indefinite prolongation of a litigation. 15. The provision fixing a particular time for making an application for bringing legal representatives on record with the consequence of the suit or appeal abating if no application is made within time, have been enacted for expeditious disposal of cases in the interest of proper administration of justice. It is further to be borne in mind that when a suit or an appeal abates, a very valuable right accrues to the other party and such a right is not to be ignored or interfered with lightly in the name of doing substantial justice to the party, as depriving a party of a lawful right created in the interest of administration of justice in the absence of good grounds results in injustice to the party concerned. For doing justice to the parties, the courts have consistently held that whenever sufficient cause is shown by a party at default in making an application for substitution, abatement will have to be set aside as the good cause shown for explaining the delay in making the application is sufficient justification to deprive the other party of the right that may accrue to the other party as a result of the abatement of the suit or appeal. The courts have also consistently ruled that latches or negligence furnish no proper grounds for setting aside the abatement. In such cases, a party guilty of negligence or latches must bear the consequences of his latches and negligence and must suffer. In appropriate cases, taking into consideration all the facts and circumstances of a case, the court may set aside the abatement, even if there be slight negligence or minor latches in not making an application within the time provided an overall picture of the entire case, requires such course for furthering the cause of justice. When negligence and latches are established on the part of the party who seeks to set aside the abatement, the application of such a party should be entertained only in the rarest of cases for furthering the ends of justice only and on proper terms." 6. In view of the ratio decided in Bhagwan Swaroop and others (supra), Mr. Bhuyan, learned counsel for the PlaintiffPetitioner submits that though the Hon'ble Supreme Court disapproved filing of an application under Order 1 Rule 10 CPC, but for the interest of justice, the same was allowed. Learned trial Court in the instant case should have taken a pragmatic view and allowed the application under Order 1 Rule 10 CPC for impletion of legal heirs of deceased Defendant No.3 instead of rejecting the petition resorting to hyper technicality. He, therefore, prays for setting aside the impugned order under Annexure-6 so far as it relates to refusal of application for impletion of legal heirs of deceased Defendant No.3 is concerned. 7. In spite of service of notice on the Opposite Parties, none has entered appearance. 8. Heard Mr. Bhuyan, learned counsel for the Petitioner and perused the case record as well as the case law cited. 9. 7. In spite of service of notice on the Opposite Parties, none has entered appearance. 8. Heard Mr. Bhuyan, learned counsel for the Petitioner and perused the case record as well as the case law cited. 9. There can be no iota of doubt that on death of a Defendant out of several Defendants, the Plaintiff has to file an application for substitution under Order XXII Rule 4 CPC to bring its legal heirs on record. If the application is not filed within a period of 90 days of the death of the Defendant, the petition for substitution should accompany an application under Order XXII Rule 9 CPC for setting aside abatement. If the petition for substitution and setting aside abatement are not filed within 150 days of the death of the Defendant, both the petitions should accompany with a petition for condonation of delay in filing the petition for substitution. 10. In the instant case, admittedly, the petition under Order 1 Rule 10 CPC was filed beyond 150 days of the death of Defendant No.3, as would be apparent from the case record i.e. the suit abated against the deceased Defendant No.3 on 12th November, 1998 and the petition under Order 1 Rule 10 CPC was filed on 19th April, 2011. It further appears that the deceased Defendant No.3 was set ex parte when he was alive. As such, the Plaintiff had filed an application under Order XXII Rule 4(4) CPC to dispense with the substitution of Defendant No.3 as he was set ex parte. The said application was rejected. The Plaintiff-Petitioner unsuccessfully challenged the same in the higher forum. Thus, the only remedy available for the Plaintiff-Petitioner was to file an application under Order XXII Rule 4 CPC along with an application under Order XXII Rule 9 CPC and for condonation of delay in filing a petition for substitution of the legal heirs of deceased Defendant No.3. In order to get rid of the effect of law for non-substitution, an application under Order 1 Rule 10 CPC was filed. 11. In the case of Bhagwan Swaroop and others (supra), the Hon'ble apex Court was entertaining a case where the legal heirs of deceased had filed an application under Order 1 Rule 10 CPC. In order to get rid of the effect of law for non-substitution, an application under Order 1 Rule 10 CPC was filed. 11. In the case of Bhagwan Swaroop and others (supra), the Hon'ble apex Court was entertaining a case where the legal heirs of deceased had filed an application under Order 1 Rule 10 CPC. However, Hon'ble Supreme Court has made the law clear stating that an application under Order 1 Rule 10 CPC at the instance of the Plaintiff-Petitioner is misconceived. A party cannot be rewarded for his latches or default. But, for the latches of the Plaintiff, the legal heirs of Defendant should not suffer and they should not go remediless on the plea that the suit has already abated against their predecessors. 12. In the instant case, no application was filed by the legal heirs of deceased Defendant No.3 to be impleaded as parties. It is at the instance of the Plaintiff such an application was filed, which is misconceived. In that view of the matter, the only remedy for the Plaintiff-Petitioner is to file an application under Order XXII Rule 4 CPC along with an application under Order XXII Rule 9 CPC as well as a petition under Sections 5 and 14 of the Limitation Act for condonation of delay. The case law cited by Mr. Bhuyan, learned counsel for the Plaintiff-Petitioner is of no assistance to his case. As such, I find no infirmity in the impugned order under Annexure-6. 13. While confirming the impugned order under Annexure-6, this Court disposes of the writ petition with an observation that the Petitioner, if so advised, may file an application under Order XXII Rule 4 CPC along with an application under Order XXII Rule 9 CPC and a petition under Sections 5 and 14 of the Limitation Act to bring on record the legal heirs of deceased Defendant No.3. While considering the aforesaid applications, learned trial Court should take a lenient view and also keep in mind that the writ petition was pending before this Court since 1st July, 2011 till date. Urgent certified copy of this judgment be granted on proper application.