ORDER

Order No. 05

1. This matter is taken up through Hybrid mode.

2. Heard learned counsel for the Petitioner as well as learned counsel appearing for the Opposite Parties. Perused the CMP application as well as the prayer made therein.

3. The Plaintiff in C.S. No.531 of 2012 pending in the Court of learned 3rd Additional Senior Civil Judge, Balasore has approached this Court by filing the present application under Article 227 of the Constitution of India thereby challenging the impugned order dated 11.04.2025.

4. Learned counsel for the Plaintiff-Petitioner at the outset contended that initially the Plaintiff filed a suit for declaration and for cancellation of sale deed. In the suit, the Defendants appeared pursuant to the notice. While the suit was pending for trial, the Defendant No.1 Sk. Nabin died on 18.02.2023 leaving behind his wife, two sons and three daughters as his legal heirs. The Plaintiff initially filed an application under Order 22 Rule 4 of CPC read with Order 1 Rule 10 of CPC on 11.08.2003. Though there was delay in approaching the Court for substitution, however, no condonation of delay application was filed along with the application for substitution. The impugned order dated 11.04.2025 reveals that vide order dated 22.02.2024, the learned trial Court observed that the said application has been filed after lapse of six months and that since the substitution petition has been filed after expiry of the prescribed period of limitation and although opportunity was granted to the Plaintiff to rectify the mistake of not filing the limitation application, no steps were taken by the Plaintiff thereto. The learned trial Court finally rejected the petition vide order dated 06.09.2024. As such, the suit abetted against Defendant No.1.

5. While this was the position, the suit proceeded further. At the time of argument the Plaintiff again filed another application under Order 22 Rule 4 of CPC on 09.04.2025 without any application for condonation of delay. Subsequently, the Plaintiff filed another application under Order 22 Rule 9 of CPC on 11.04.2025. Both this applications were taken up for hearing by the learned trial Court and after hearing both sides, vide common order dated 11.04.2025 at Annexure-2 to the CMP application, learned trial Court rejected both the applications filed by the Plaintiff. Being aggrieved by such order, the Petitioner has approached this Court by filing the present CMP application.

6. While assailing the impugned order dated 11.04.2025, learned counsel for the Petitioner at the outset contended that although applications were filed before the learned trial Court under Order 22 Rule 4 as well as Order 22 Rule 9 of CPC to bring on record the deceased-Defendant No.1 and to set aside the abetment of the suit as against the Defendant No.1, however the same has not been considered in its proper perspective by the learned trial Court. He further contended that the learned trial Court has committed an illegality by order dated 06.09.2024, which has attained finality and that the learned trial Court has no jurisdiction to recall its own order. It is only on such ground both the applications the Petitioner has been disposed of by virtue of common impugned order.

7. In course of argument, learned counsel for the Petitioner further contended that unless the Plaintiff is permitted to substitute the legal heirs of the deceased-Defendant No.1 and unless the abetment of the suit against the Defendant No.1 and his legal heirs is set aside, the Plaintiff is likely to be seriously prejudiced. He further contended that a valuable substantive right of the Plaintiff over the property is involved in the suit. In such view of the matter, learned counsel for the Petitioner contended that merely on the basis of a technicality the right of the Plaintiff to proceed against the Defendant No.1 and his legal heirs have been taken away. It was also contended that the learned trial Court failed to provide opportunity to th