IMPORTANT POINT
Procedural compliance is essential in civil litigation, and while courts may exercise discretion to overlook minor lapses, parties must follow established procedures to avoid abatement and ensure justice is served.

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. 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 o