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IN THE HIGH COURT OF ORISSA AT CUTTACK

CMP No. 874 of 2022

Fakira Charan Jena and others

&.

Petitioners

Mr. A.Kejriwal, Advocate

-versus-

Babaji Charan Jena

&. Opp. Party

CORAM:

JUSTICE K.R. MOHAPATRA

ORDER

Order No.

13.12.2022

3.

1.

This matter is taken up through Hybrid mode.

2.

Petitioners in this CMP seek to assail the order dated 31^st

August, 2021 (Annexure-1) passed in CS No.252 of 2016,

whereby learned Civil Judge (Senior Division), Jagatsinghpur

allowed an application for substitution of the Plaintiff and a

direction was made to file consolidated plaint. Petitioners

further assail the order dated 8^th July, 2022 (Annexure-3)

passed therein, whereby the petition for modification of order

dated 31^st August, 2021 was rejected.

3.

Mr. Kejriwal, learned counsel for the Petitioners submits

that during pendency of CS No.252 of 2016, the sole Plaintiff

died and accordingly her legal heirs filed application under

Order XXII Rule 3 CPC to be substituted in her place. In terms

of order dated 31^st August, 2021 Petitioners filed consolidated

plaint along with the amended cause title. But the Office

pointed out defect to the effect that the consolidated plaint was

not supported by an affidavit as required under Section 26(2)

CPC. Hence, Petitioners filed an application dated 21^st June,

2022 for modification of order under Annexure-1 to the extent

of filing of 8consolidated cause title9 in place of 8consolidated

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plaint9. The said application was rejected vide order dated 8^th

July, 2022 (Annexure-3). Hence, this CMP has been filed.

3.1

Mr. Kejriwal, learned counsel relying upon the case of

Salem Advocate Bar Association, Tamil Nadu Vs. Union of

India, reported in AIR 2005 SC 3353, wherein it is held as

under:-

<4.

Prior to insertion of the aforesaid provisions, there

was no requirement of filing affidavit with the pleadings.

These provisions now require the plaint to be accompanied

by an affidavit as provided in Section 26(2) and the person

verifying the pleadings to furnish an affidavit in support of

the pleading [Order 6 Rule 15(4)]. It was sought to be

contended that the requirement of filing an affidavit is

illegal and unnecessary in view of the existing requirement

of verification of the pleadings. We are unable to agree.

The affidavit required to be filed under amended Section

26(2) and Order 6 Rule 15(4) of the Code has the effect of

fixing additional responsibility on the deponent as to the

truth of the facts stated in the pleadings. It is, however,

made clear that such an affidavit would not be evidence for

the purpose of the trial. Further, on amendment of the

pleadings, a fresh affidavit shall have to be filed in

consonance thereof.

He, therefore, submits that the Petitioners will be required to file

an affidavit in support of the pleadings and verification in the

event an amended plaint is filed. But Section 26(2) CPC is not

applicable in the instant case, as the Petitioners are only required

to file a consolidated cause title in terms of Order XXII Rule 3

CPC. Learned trial Court, without considering the same, has

rejected the application. Hence, this CMP has been filed.

4.

Considering the submission made by learned counsel for

the Petitioners and on perusal of relevant provisions of CPC along

with case law cited, it is crystal clear that Petitioners were only

required to file consolidated cause title pursuant to substitution of

the deceased Plaintiff, but vide order under Annexure-1, the

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direction was made to file consolidated plaint. Newly added

Petitioners/Plaintiffs accepting the said order, had in fact filed the

consolidated plaint, but a defect was pointed out by the Office to

the effect that it is not supported by an a