Notice to proposed legal heirs is mandatory before their substitution in a suit, safeguarding rights under the principle of natural justice.

ORDER :

K.R. MOHAPATRA, J.

1. This matter is taken up through hybrid mode.

2. Order dated 22^nd January, 2024 (Annexure-5) passed in C.S. No.433 of 2013 is under challenge in this CMP, whereby learned Addl. Senior Civil Judge, Kendrapara rejected an application filed by Defendant Nos.5 and 7 to issue notice to the proposed legal heirs of the deceased Defendant Nos.12 and 19 for consideration of the application filed under Order XXII Rule 4 C.P.C.

3. Mr. Nayak, learned counsel for the Petitioners submits that the suit has been filed for partition and declaration as well as for permanent injunction. During pendency of the suit, the Defendant Nos.12 and 19 died. No petition for their substitution was filed within the statutory period. Hence, the suit was abated against the deceased Defendant Nos.12 and 19. However, after lapse of more than thirteen months, two applications were filed for substitution of the deceased Defendant Nos.12 and 19 without filing any application for setting aside abatement or condonation of delay. Hence, the Petitioners, namely, Defendant Nos.5 and 7, filed an application to issue notice to the proposed legal heirs of the Deceased Defendant Nos.12 and 19 before the petition under Order XXII Rule 4 C.P.C. is taken up for consideration. Learned trial Court simply quoting the provision under Order XXII Rule 4 C.P.C. rejected the application holding that no notice is required to be issued to the proposed legal heirs of the deceased Defendant Nos.12 and 19 for consideration of the application under Order XXII Rule 4 C.P.C. Hence, this CMP has been filed.

3.1 In support of the case of the Petitioners, Mr. Nayak, learned counsel relied upon the case of Rautani Bewa and others –v- Rupei Bewa and Gurubari Bewa and others reported in Vol.33 (1967) CLt 951, wherein it is held as under:

“A valuable right had accrued to the legal representatives of the deceased after the suit abated against the original defendant no. 16. In any case of infringement of right whether the statutes specifically provide for service of notice or not, notice is mandatory. It is unnecessary to refer to plethora of authorities. It is sufficient to refer to M. Nizamul v. Mst. Bibi', and Om Srun v. Gur Harain". This doctrine is based on principle of natural justice that the case against a party or a person who at the moment is not actually a party but is going to be impleaded as a party in future is not to be affected without his being heard and being given full opportunity of adducing evidence in defence. A similar matter was discussed in Prahald Prusty v. Sk. Abdul Raheman, under Order 9, Rule 4 Civil Procedure Code which does not prescribe for service of notice, This Court observed thus:

"The position therefore is that generally a notice to the opposite party is not essential in a proceeding under Order 9, Rule 4, Civil Procedure Code. There may, however, be cases where a valuable right of the defendant may be affected. In such cases service of notice is mandatory."

The learned Subordinate Judge therefore committed an illegality and exercised his jurisdiction with material irregularity in not issuing notice of the application for substitution and setting aside abatement to the legal representatives of the deceased.”

4. In view of the above, notice to the proposed legal heirs of the deceased Defendant Nos.12 and 19 is mandatory before consideration of the application under Order XXII Rule 4 C.P.C. Hence, he prays for setting aside the impugned order under Annexure-5.

5. Taking note of the submission made by learned counsel for the Petitioner and on perusal of the record, it appears that the impugned order is cryptic one. Learned trial Court has not assigned any reason as to why n