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IN THE HIGH COURT OF ORISSA AT CUTTACK
B.P. ROUTRAY
Umesh Chandra Pattnaik@ Pattanaik – Appellant
Versus
Ambika Prasad Mohanty – Respondent
| Table of Content |
|---|
| 1. notice dispense for proforma parties. (Para 1 , 2) |
| 2. c.m.p. against prior dismissal and restoration application. (Para 3 , 4) |
| 3. petitioner's objection to leave for fresh application. (Para 5 , 6) |
| 4. c.p.c. rules on abatement and restoration. (Para 7 , 8) |
| 5. court's discretion on withdrawal and leave to reapply. (Para 9 , 10 , 11) |
| 6. c.m.p. dismissed. (Para 12) |
JUDGMENT :
B.P. Routray, J.
1. Since Opposite Parties 2 to 4 are proforma Opposite Parties, on the request of Mr. S. Das, learned counsel for the Petitioner, the notice on them is dispensed with for the time being.
2. Heard Mr. S. Das, learned Advocate for the Petitioner and Mrs. S. Jena, learned Advocate for Opposite Party No.1.
3. Present C.M.P. is directed against the order dated 17.02.2025 passed in C.M.A. No.72 of 2024 (arising out of C.S. No.111 of 2020) by the learned Civil Judge (Sr. Divn.), Kujang, wherein the prayer of the Plaintiff (present Opposite Party No.1) to withdraw the C.M.A. was allowed granting liberty to him to file a better application.
4. Present Opposite Party No.1 being the Plaintiff filed C.S. No.111 of 2020 which was dismissed for default on 17.09.2024. Thereafter the Plaintiff filed an a
Plaintiff may withdraw a suit with court permission if necessary parties are deceased, without affecting co-defendants' separate interests.
An appeal filed against a deceased sole defendant is a nullity; proper procedure requires withdrawal of the appeal with liberty to file a fresh one involving the legal heirs.
The main legal point established in the judgment is that the provisions of Order 22 of CPC are procedural and should not curtail the substantial rights of the parties. The Court emphasized the applic....
Legal representatives of deceased parties can seek substitution; amendments to pleadings are permitted to promote effective adjudication and safeguard substantive rights over rigid procedural complia....
Judicial discretion under Order IX Rule 4 C.P.C. is crucial, and a liberal approach should be taken to allow restoration of suits for effective adjudication, especially when circumstances affecting n....
The court emphasized that the delay in filing the application for setting aside the abatement should be considered in light of the circumstances and that a lenient view should be adopted in such case....
Court emphasized the necessity of adjudicating rights based on merits, prioritizing substantial justice over procedural technicalities in allowing substitution of LRs and condoning delay.
The main legal point established is that the timely filing of applications under Order XXII Rule 4 and Rule 9 of the CPC is crucial, and delay cannot be condoned without sufficient cause. Negligence ....
Abatement of an appeal under CPC is not automatic upon death if the right to sue survives; presence of a legal representative allows continuation despite procedural delays.
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