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K. R. MOHAPATRA
Kulamani Dash – Appellant
Versus
Sakuntala Lenka (Dead) – Respondent
Key Points: - The application to implead the legal heirs of deceased Defendant No.3 was filed beyond the permissible period and misconceived; proper route is to file under Order XXII Rules 4 and 9 CPC along with Limitation Act applications (!) (!) (!) . - Substitution of legal heirs after death of a party requires filing under Order XXII Rule 4 CPC; if not filed within prescribed period, abatement occurs; setting aside abatement is possible only with sufficient cause and may be denied if negligence or latches are established (!) (!) (!) . - The court may excuse minor procedural lapses in the interest of justice, but cannot reward negligence; the correct course is to pursue substitution under CPC and Limitation Act rather than treating Order I Rule 10 CPC as appropriate in this context (!) (!) (!) . - The impugned order rejecting the application to implead legal heirs of deceased Defendant No.3 is confirmed; petitioner may file appropriate applications under Order XXII Rule 4, Rule 9 CPC and Limitation Act with leniency considering the writ petition had been pending since 2011 (!) . - The writ petition notes that the suit abated against Defendant No.3 on 12th November, 1998; the plaintiff had previously attempted to dispense with substitution under Order XXII Rule 4(4) CPC, which was rejected (!) . - The court leaves open the option to file under Order XXII Rule 4 CPC, Order XXII Rule 9 CPC, and Limitation Act for condonation of delay to bring on record the legal heirs of deceased Defendant No.3, taking into account the prolonged pendency of the matter (!) . - The matter was heard in hybrid mode; no appearance entered by opposite parties; advocates represented the petitioner (!) (!) . - The petitioner’s counsel relied on prior jurisprudence indicating that procedure should facilitate justice, but the court clarified that an Order 1 Rule 10 CPC application is misconceived in this context (!) (!) .
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 deceas
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