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IN THE HIGH COURT OF ORISSA AT CUTTACK

CMP No.386 of 2018

Manorama Das and another

&.

Petitioners

Ms. Mamata Mishra, Advocate

-versus-

Purusottam Sethi

&. Opp. Party

CORAM:

JUSTICE K.R. MOHAPATRA

ORDER

Order No.

02.01.2023

IA No.871 of 2018

6.

1.

This matter is taken up through Hybrid mode.

2.

This is an application for impletion of all legal heirs of

deceased-Plaintiff, namely, Purusottam Sethi, as parties to the

CMP. Vide order dated 25^th August, 2018 notice in the IA was

issued.

3.

Considering the submission made by learned counsel for

the Petitioner, the IA is allowed. Proposed legal heirs as per the

Schedule appended to the IA are allowed to be impleaded as

Opposite Party Nos. 1(a) to (e).

(K.R. Mohapatra)

Judge

7.

CMP No.386 of 2018

1.

This CMP has been allowed assailing the order dated

26^th February, 2018 (Annexure-1) passed learned Civil Judge

(Senior Division), Jajpur in CS No.392 of 2012, whereby an

application filed by one Sabitri Sethi, one of the legal heirs of

the sole deceased Plaintiff along with petitions for condonation

of delay and setting aside abatement has been allowed.

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2.

Miss Mishra, learned counsel for the Petitioners submits

that CS No.392 of 2012 has been filed to declare the sale deed

18^th April, 1983 and 23^rd April, 1983 as illegal and void and not

binding on him. During pendency of the suit, sole Plaintiff died

on 24^th December, 2014 and after his death, his son filed an

application for substitution on 3^rd November, 2015 along with

petition for condonation of delay. The said application for

substitution was dismissed for which the Petitioners moved this

Court in CMP No.1038 of 2017, which was disposed of on 11^th

December, 2017 holding that since the application for

substitution was moved only with an application for

condonation of delay and that in absence of any application for

setting aside abatement there is no question of consideration of

application for condonation of delay and substitution.

Admittedly, no application for setting aside abatement was filed

along with the petition for substitution. Subsequently, however,

the daughter of the Plaintiff, namely, Sabitri Sethi filed an

application for setting aside abatement along with the petition

for condonation of delay and substitution. The said application

was allowed vide the impugned order. Hence, this CMP has

been filed.

3.

It is her submission that when earlier application for

substitution has already been dismissed and confirmed in CMP

No.1038 of 2017 a subsequent application for substitution is not

maintainable. Principle of res judicata applies to different stages

of the same proceeding. Learned trial Court, while adjudicating

the matter, did not take the aforesaid position of law into

consideration and allowed the application. Hence, this CMP has

been filed.

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4.

Considering the submission of learned counsel for the

Petitioners and on perusal of record, it appears that earlier

application for substitution filed by one of the sons of the

deceased Plaintiff was dismissed, as no petition for abatement

was filed along with the petition for substitution. Admittedly,

the Plaintiff died on 24^th December, 2014 and the application

for substitution was filed on 3^rd November, 2015, i.e., almost

one year after. As such, the said application for substitution was

dismissed. This Court, while disposing of CMP No.1038 of

2017, has categorically observed that in absence of any

application for setting aside abatement, petition for substitution

and condonation of delay in filing the substitution petition

cannot be entertained. However, subsequent application for

substitution was accompanied by the petition for condonation

of delay as well as petition for setting aside abate