JUDGMENT

I. MAHANTY, J. — Misc. Case No.55 of 2004 has been filed by the Union of India and others under Order 22 Rule 4 of the Code of Civil Procedure intimating that Respondent No.1-Smt. Nirupama Jena, W/o. Late Abdhut Jena died on 12.10.2004 during the pendency of this appeal, leaving no issue of her own. It further asserted that the other respondents being the legal heirs of Late Abdhut Jena and Late Smt. Nirupama Jena-Respondent No.1 (1st wife) i.e., Respondent Nos. 2 to 5 be accepted as substitut¬ed legal heirs of Respondent No.1. This petition was filed on 7.12.2004.

2. The 2nd Misc. Case, i.e., Misc. Case No.51 of 2005 has been filed by one Smt. Subhashree Jena and Smt. Parbany Jena. In their petition supported by an affidavit state that their Late father Abdhut Jena (Original respondent) had expired on 10.10.2003 leaving behind him, his wife Late Nirupama Jena and two married daughters (the present petitioners). The said peti¬tion further contains a declaration that Nirupama Jena had also expired during the pendency of the appeal on 12.10.2004 and prayed for substitution by impleading them in place of respondent No.1(a)-Nirupama Jena. Their claim was sought to be justified on the basis of Legal Heir Certificate issued in their favour by the Tahasildar, Sadar, Cuttack under Annexure-3 to the said applica¬tion.

3. Mr. A.B. Mishra, learned counsel for the petitioner, inter alia, asserts that Misc. Case No.55 of 2004 (filed by the Union of India) ought to be allowed and consequently, Misc. Case No.51 of 2005 filed by Smt. Subhashree Jena and Parbany Jena ought to be rejected since the present appeal was filed by the Union of India and applying the “principles of dominus litus”. He submitted that it was the right of the appellant to substitute the deceased-respondent and, therefore, the prayer of the peti¬tioner misc. case should not be entertained.

Mr. Mishra further submitted that when the original sole respondent, Sri Abdhut Jena passed away on 10.10.2003, the Union of India had filed an application for substitution of sole re¬spondent under Order 22 Rule 4 C.P.C. and the same has been registered as Misc. Case No.01 of 2004 and the said Misc. Case came to be allowed by Order No.13 dated 24.2.2004, thereby permitting the impletion the following legal heirs of the de¬ceased-respondent, namely, Smt. Nirupama Jena [R-1(a)-1st wife], Nayanbala Jena [R-1(b)-2nd wife] and Nayanbala Jena’s children namely, Smt. Susmita Jena [R-1(c)], Kumari Abhiskta Jena [R-1(d)] and son Ashis Jena [R-1(e)].

Learned counsel submits that since this Court has accepted the substitution as prayed for in Misc. Case 1 of 2004 and no objection was raised on behalf of Smt. Nirupama Jena who had been impleaded as respondent No.1 about the non-inclusion of her alleged daughters. Apart from the said fact, he placed reliance on the Order No.14 dated 24.2.2004 passed by this Court in Misc. Case No.30 of 2003 which was filed by Smt. Nirupama Jena and Orders thereon passed on the self-same date, i.e. 24.2.2004. From these facts, learned counsel contended that Misc. Case No.51 of 2005 filed by Smt. Subhashree Jena and Smt. Parbany Jena are wholly unlawful and should not be entertained. Mr. Mishra further contended that no reliance should be placed upon the Legal Heir Certificate, issued by the Tahasildar, Sadar Cuttack declaring Smt. Subhashree Jena and Smt. Parbany Jena as married daughters of the deceased Smt. Nirupama Jena (Annexure-3 to Misc. Case No.51 of 2005).

4. Mr. Pattnaik and Mr. Mishra, learned counsel for the respondents, in essence, supported the stand taken by the Union of India advanced by Mr. Mishra as noted hereinabove, and object¬ed to the petition filed by Smt. Subhashree Jena and Smt. Parbany Jena.

5. Mr. Palit, learned counsel appearing for Smt. Subha¬shree Jena and Smt. Parbany Jena, on the other hand, submitted that the application filed by his clients in Misc. Case No.51 of 2005 ought to be allowed since his clients are the legal heirs