Advocates:
['M/S TAPASWINI SINHA', '', 'S K SETHI', 'S CHAKRAVARTY', 'B DAS', 'G S PANDA', 'S NANDA', 'B K SINHA']

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IN THE HIGH COURT OF ORISSA AT CUTTACK

CMP NO. 297 OF 2016

Pitambar Sahoo and others

&.

Petitioners

Mr. S. Chakravarty, Advocate

-versus-

Niranjan Sahoo and others

&.

Opp. Parties

None

CORAM:

JUSTICE K.R. MOHAPATRA

ORDER

Order No.

10.08.2021

8.

1.

This matter is taken up through hybrid mode.

2.

Heard Mr. Chakravarty, learned counsel for the

Petitioners.

3.

Notice issued to the Opposite Party No.7 is treated to be

sufficient as he has refused to receive the same. Although

notices were made sufficient against the Opposite Parties, none

appears for them.

4.

This CMP has been filed assailing the order dated 2^nd

February, 2016 (Annexure-6) passed by learned Civil Judge

(Junior Division), Jajpur in T.S. No. 187 of 2004, whereby he

rejected the applications filed by the Petitioners under Order 1

Rule 10 read with Order 22 Rule 3 of the C.P.C along with the

petition under Section 5 of the Limitation Act.

5.

Mr. Chakravarty, learned counsel for the Petitioners

submits that T.S. No. 187 of 2004 was decreed ex parte against

the Defendants-Opposite Parties. Subsequently, the Defendants-

Opposite Parties filed CMA No. 149 of 2013 under Order IX

Rules 13 C.P.C. for setting aside the ex parte decree, which was

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allowed on 19^th September, 2015. During pendency of the

petition under Order IX Rule 13 C.P.C., the Plaintiff died and

the Defendants-Opposite Parties, who were Petitioners in the

petition under Order IX Rule 13 C.P.C., filed an application

under Order XXII Rule 4 C.P.C. for substitution of the deceased

Plaintiff. Accordingly, vide order dated 10^th July, 2014, the

present Petitioners were substituted in place of the deceased

Plaintiff. When the ex parte decree was set aside, the Petitioners

filed the aforesaid application to implead them as Plaintiffs in

place of the original Plaintiff, who died during pendency of the

proceeding in CMA No. 149 of 2013 and to regularize the suit.

Learned Civil Judge holding that since the Plaintiff died in the

year, 2014 and the petition under Order XXII Rule 3 C.P.C. did

not accompany a petition under Order XXII Rule 9 C.P.C. for

setting aside the abatement, no substitution can be made.

Accordingly, he dismissed the petition under Order 1 Rule 10

C.P.C. read with Order XXII Rule 3 C.P.C. He further submits

that the Petitioners had no scope to file an application in time in

T.S. No. 187 of 2004 as it was disposed of ex parte and the

petition under Order IX Rule 13 C.P.C. was pending. Further,

the Petitioners were substituted in the said proceeding under

Order IX Rules 13 C.P.C. within the stipulated period. Only in

order to regularize the suit, the aforesaid petitions were filed by

the present Petitioners for their impleadment in the suit in place

of the deceased Plaintiff. Learned trial court without considering

the same from its proper prospective rejected the petitions.

Hence, this CMP has been filed.

6.

Taking into consideration the submission of learned

counsel for the Petitioners, this Court is of the considered

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opinion that when the Petitioners were substituted in CMA

No. 149 of 2013 filed under Order IX Rule 13 C.P.C. and

learned Civil Judge should have taken a pragmatic view and

given opportunity to the Petitioners to file an application under

Order XXII Rule 9 C.P.C. for setting aside the order of

abatement. The Petitioners had also no scope to file the petition

for substitution in time in the suit as it was decreed ex parte by

the time the original Plaintiff died. Thus, this Court feels it

proper to allow the Petitioners to be substituted in the suit in

place of the deceased Plaintiff. In that view of the matter, the

impugned order is set aside.

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