The main legal point established in the judgment is that the court has the discretion to set aside the abatement of a suit and allow the withdrawal of a suit with liberty to file a fresh suit on the same cause of action, considering the advancement of justice as the main consideration.

JUDGMENT :

Satish K. Agnihotri, J.

The petitioner herein filed a suit for declaration and other reliefs against the 1st to 5th respondents/defendants and late Bhim Raj Pradhan, father of the 6th and 7th respondents and husband of the 8th respondent, who was impleaded as proforma defendant at Sl. No. 6, on 27th May 2014. Late Bhim Raj Pradhan filed written statement on 02nd September 2014. On 20th January 2015, late Bhim Raj Pradhan died leaving behind his sons, 6th and 7th respondents and wife, the 8th respondent herein.

2. The brief facts as projected by the petitioner are that on 17th March 2015, learned counsel, Ms. Yangchen Doma Gyatso, appearing for the proforma defendant 6 informed the petitioner/ plaintiff and the court about proforma defendant’s death on 20th January 2015. As evident from the proceedings dated 17th March 2015, it was averred that the advocate appearing for the plaintiff retired from the suit on personal grounds. The plaintiff and his constituted attorney were informed through the Personal Manager, Mr. M.B. Majhi. The matter was adjourned to 22nd April 2015. On 22nd April 2015, the plaintiff remained absent without having taken any step to bring legal heirs of the deceased proforma defendant 6 on record. The suit was again taken up on 08th May 2015, wherein one Mr. Durga Prasad Luitel, Advocate appeared for the plaintiff and sought adjournment on the ground that he was recently appointed by the plaintiff. The matter was adjourned to 28th May 2015. On 28th May 2015, again time was sought by the counsel for the petitioner/ plaintiff to obtain certain documents from the Land Revenue Department. The suit again appeared in the court on 03rd July 2015, when the advocate appearing for the plaintiff sought for some more time to take necessary steps for substitution of legal heirs of the deceased defendant 6. Accordingly, time was granted and the matter was adjourned to be listed on 03rd September 2015.

3. On 03rd September 2015, an application under the provisions of Order XXII Rule 4 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC”), filed by the petitioner/plaintiff was taken on record, wherein it was stated that the deceased Bhim Raj Pradhan was survived by his wife Smt. Bindu Mati Pradhan and two sons namely, Mr. Bhaskar Raj Pradhan and Mr. Alok Raj Pradhan. A prayer was made to implead Mr. Alok Raj Pradhan as proforma defendant 6, in place of the deceased proforma defendant 6, late Bhim Raj Pradhan. Before that Mr. Alok Raj Pradhan and Mr. Bhaskar Raj Pradhan filed two caveats separately on 20th August 2015 (registered as Caveat No. 25 of 2015 and Caveat No. 26 of 2015 respectively) in the pending suit. On 03rd September 2015, two advocates namely, Ms. Pema Yeshey Bhutia and Mr. Hissay Dorjee Bhutia, appeared for the deceased 6th defendant. Notices were issued on the caveats as well as on the application to bring legal heirs after the death of the deceased defendant 6 on record, returnable on 14th October 2015. On 14th October 2015, both the caveators/legal heirs of the deceased defendant 6 appeared through advocate. Mr. Alok Raj Pradhan filed reply to the application for substitution on 14th October 2015, contesting that the suit stands abated against the deceased proforma defendant 6, as such his name be deleted from the array of the parties.

4. Subsequently, on 29th March 2016, the petitioner/ plaintiff filed an application under Order XXIII Rule 1 (3) read with Section 151 CPC stating that due to inadvertence and oversight, proper relief could not be made in the suit and as such the plaintiff be allowed to withdraw the present suit with liberty to file a fresh on the same cause of action. The legal heirs of the deceased defendant 6 contested the application. The learned District Judge by impugned order dated 27th April 2016 allowed the application of the plaintiff to withdraw the suit and also dismissed the application of the plaintiff to bring legal heirs of the deceased proforma defe