Plaintiff may withdraw a suit with court permission if necessary parties are deceased, without affecting co-defendants' separate interests.

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 application for restoration of the suit on 30.09.2024 as per Order 9 Rule 9, C.P.C. which was registered as C.M.A. No.72 of 2024. Subsequently it came to the knowledge of the Plaintiff that during pendency of the suit and before its dismissal, Defendants 1, 3, 7 & 8 died in the meantime and therefore, a better application is required to be filed on behalf of the Plaintiff since the present C.M.P. is not maintainable against the dead persons. Thus, the Plaintiff filed a petition under Order 23 Rule 1, C.P.C. praying for withdrawal of C.M.A. with liberty to file a fresh application.

5. The Petitioner objects such prayer of the Plaintiff granting him leave to apply afresh while withdrawing the C.M.A. and according to him, the Plaintiff is not entitled to be granted with said leave since it was within his knowledge that those Defendants were died during pendency of the suit and he did not take any step for their substitution.

6. Conversely, it is submitted by Mrs. S. Jena, learned counsel, on behalf of the Plaintiff that whatever may be the reason is, the admitted fact remains that by the time of filing of the petition under Order 9 Rule 9, C.P.C. said Defendants were already dead and a petition against a dead person is not maintainable.

7. The objection raised by the Plaintiff is found misconceived. Order 22 Rule 4 of the C.P.C. lays down that where no application is made within the time limited by law to implead the legal representatives of a deceased Defendant, the suit shall abate as against a deceased Defendant. This rule does not provide that by the omission to implead the legal representative of one Defendant, the suit will abate as a whole. If the interests of the co-defendants are separate, the suit will abate only as regards the particular interest of the deceased party. Order 9 Rule 9 of the C.P.C. confers right on the Plaintiff to apply for restoration of the suit provided he satisfies sufficient cause for his non- appearance. Dismissal of the suit for non-prosecution and restoration of the same is independent of the right of Plaintiff to substitute a deceased Defendant as per provisions contained Order 22 Rule 4 of the C.P.C.

8. The fact of death of Defendants 1, 3, 7 & 8 during pendency of the suit is undisputed. The suit was dismissed for default on 17.09.2024 and nowhere it was brought on record by Defendant No.2 that the death of such Defendants had ever been brought to the notice of the Plaintiff during pendency of the suit. So, it is not the case of the Defendants that death of Defendants 1, 3, 7 & 8 was within the knowledge of the Plaintiff before dismissal of the suit. Thus, the plea taken on the part of the Plaintiff that it was not within his knowledge during pendency of the suit regarding death of such Defendants is not found unbelieva