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IN THE HIGH COURT OF ORISSA AT CUTTACK I.A. Nos.136, 39, 40 & 41 of 2024 Aruna Devi (dead) …. Petitioner -versus- J. Ammayamma (dead) and another ..... Opposite Parties Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Petitioner - Mr. R.K. Mohanty, Sr. Advocate. For Opposite Parties- Mr. R.K. Agarwal, Advocate. On behalf of Mr. S.P. Mishra, Sr. Advocate. CORAM: MR. JUSTICE A.C.BEHERA Date of Hearing :26.02.2024 :: Date of Order :18.04.2024 A.C. Behera, J. 1. The I.A. No.136 of 2024 has been filed praying for recalling the final judgment passed on dated 31.01.2024 in S.A. No.331 of 1989. I.A. No.39 of 2024 has been filed under Order 22 Rule 3 of the CPC, 1908 praying for substitution of the LRs of the appellant in S.A. No.331 of 1989. Page 1 of 11 {{ 2 }} I.A. No.40 of 2024 has been filed under Order 22 Rule 9 of the CPC, 1908 praying for setting aside the order of abatement as per law passed against the appellant in S.A. No.331 of 1989 for her death. I.A. No.41 of 2024 has been filed under Section 5 of the Indian Limitation Act, 1963 praying for condonation of the delay in filing I.A. No.40 of 2024 for setting aside the order of abetment passed as per law against the appellant in S.A. No.331 of 1989. 2. When the results of the I.A. Nos.39, 40 & 41 of 2024 are dependent upon the result of the I.A. No.136 of 2024, then, all these four I.As have been taken up together for their final disposal through this common order. 3. I have already heard from the learned counsels for the petitioner and opposite parties. 4. In I.A. No. 136 of 2014, it has been stated that, the Second Appeal vide S.A. No.331 of 1989 was filed by Aruna Devi being the sole
Legal Reasoning
appellant challenging the judgment and decree passed in the First Appeal vide T.A. No.78 of 1986. The Second Appeal vide S.A. No.331 of 1989 was listed on 12.12.2023 for hearing and on that day i.e. on 12.12.2023, the arguments
Legal Reasoning
of that S.A. No.331 of 1989 was heard in full from the learned counsels of both the sides and that S.A. No.331 of 1989 was kept reserved for Page 2 of 11 {{ 3 }} judgment. Even though, the learned counsel for the appellant had tried to contact the appellant of S.A. No.331 of 1989 before participating in the arguments of that S.A. No.331 of 1989 on 12.12.2023, but learned counsel for the appellant was unable to contact her. The children of the appellant in S.A. No.331 of 1989 were contacted after closure of arguments and before delivery of judgment of S.A. No.331 of 1989 and got information from the children of the appellant in S.A. No.331 of 1989 that, the appellant in S.A. No.331 of 1989 i.e. Aruna Devi has expired since 17.09.2018 leaving behind her four sons as her successors. For which, on dated 12.01.2024, the learned counsel for the appellant filed petition under Order 22 Rule 3 of the CPC, 1908 to substitute the LRs of the appellant in S.A. No.331 of 1989 along with two separate petitions under Order 22 Rule 9 of the CPC, 1908 and Section 5 of the Indian Limitation Act, 1963 for setting aside the order of abatement and for condonation of delay vide I.A. Nos. 39, 40 & 41 of 2024. But, though, the appellant’s counsel filed a memo for listing all the above three I.As under Order 22 Rule 3, under Order 22 Rule 9 of the CPC, 1908 and Section 5 of the Indian Limitation Act, 1963 vide I.A. No. 39, 40 & 41 of 2024 in order to bring the same to the notice of the Court, but, unfortunately, the I.A. Nos.39, 40 & 41 of 2024 could not be listed and ultimately on 31.01.2024, the final judgment in S.A. No.331 of 1989 was pronounced Page 3 of 11 {{ 4 }} in dismissing that Second Appeal. So, the learned counsel for the appellant in S.A. No.331 of 1989 was forced to file I.A. No.136 of 2024 after pronouncement of judgment of S.A. No.331 of 1989 praying for recalling that final judgment of S.A. No.331 of 1989 and to take up the petitions for substitution, setting aside order of abatement and condonation of delay under Order 22 Rule 3, under Order 22 Rule 9 of the CPC, 1908 and Section 5 of the Indian Limitation Act, 1963 vide I.A. Nos.39, 40 & 41 of 2024, as the appellant of S.A. No.331 of 1989 had expired prior to the pronouncement of the judgment of that S.A. No.331 of 1989. 5. It appears from the records of S.A. No.331 of 1989 that, the learned counsel for the appellant had participated on dated 02.11.2023 in the hearing of Misc. Case Nos.319, 320, 321, 322 of 2011 and Misc. Case Nos.15 & 16 of 2012, those were filed on behalf of the appellant in that S.A. No.331 of 1989 and after final disposal of the above six Misc. Cases on 02.11.2023 on hearing from the learned counsels of both the sides, the Second Appeal vide S.A. No.331 of 1989 was listed to 12.12.2023 in presence of the learned counsels of both the sides for hearing of arguments. Then, on 12.12.2023, the arguments of the S.A. No.331 of 1989 was heard from the learned counsel for the appellant as well as from the learned counsel for the respondents and on completion of hearing of Page 4 of 11 {{ 5 }} arguments from both the sides, the judgment of that S.A. No.331 of 1989 was kept reserved. Thereafter, the judgment of the S.A. No.331 of 1989 was pronounced on 31.01.2024 in presence of the learned counsels of the appellant and respondents and as per the pronounced judgment, that S.A. No.331 of 1989 was dismissed on contest, but without cost. Till the dismissal of the Second Appeal vide S.A. No.331 of 1989 through pronouncement of its judgment in open Court on dated 31.01.2024 in presence of the learned counsel for the appellant, the learned counsel from the appellant neither submitted nor brought to the notice of the Court about the death of the sole appellant prior to the hearing of that Second Appeal, though, the learned counsel for the appellant was regularly participating in each date of hearing of that Second Appeal. But, when the result of the Second Appeal vide S.A. No.331 of 1989 went against the appellant through pronouncement of its judgment on dated 31.01.2024 in dismissing that Second Appeal vide S.A. No.331 of 1989 of the appellant, then as per Order No.40 dated 26.02.2024, these four I.As were brought to the notice of the Court by the learned counsel for the appellant in order to recall the judgment of S.A. No.331 of 1989 on the ground of death of the appellant of S.A. No.331 of 1989 on 17.09.2018 stating that, judgment of S.A. No.331 of 1989 against the deceased Page 5 of 11 {{ 6 }} appellant is a nullity, because, that judgment of S.A. No.331 of 1989 has been pronounced without substituting the L.Rs of the appellant and without complying the principles of natural justice i.e. without giving any opportunity of hearing to the LRs of the appellant. 6. As per law i.e. as per the provisions of O. 22 R. 10-A of the CPC 1908, though it was the duties and obligations of the learned counsel for the appellant in S.A. No.331 of 1989 to inform the Court about the death of the sole appellant before conclusion of the hearing of the arguments of the Second Appeal vide S.A. No.331 of 1989, but after the dismissal of the Second Appeal vide S.A. No.331 of 1989 of the appellant as per its judgment dated 31.01.2024, the learned counsel for the appellant brought the same to the notice of the Court through these I.As and prayed for recalling the pronounced judgment of S.A. No.331 of 1989. So, there was no fault with the Court for pronouncing the judgment of S.A. No.331 of 1989 without substituting the LRs of the appellant, because, the death of the appellant was not brought to the notice of the Court by the learned counsel for the appellant till the pronouncement of judgment of S.A. No.331 of 1989 on 30.01.2024. 7. It is the settled propositions of law that, no one can take advantage of his/her own wrong. Page 6 of 11 {{ 7 }} On this aspect, the propositions of law has already been clarified in the ratio of the following decision of the Apex Court:- 2023 (3) CCC 84 (SC)—G. Vikram Kumar Vrs. State Bank of Hyderabad & others—No one can be permitted to get benefit of his own wrong. 8. Had the LRs of the appellant in S.A. No.331 of 1989 been substituted in her place and the Second Appeal vide S.A. No.331 of 1989 would have been heard after substitution of the LRs of the appellant, still then, the result of the Second Appeal vide S.A. No.331 of 1989 regarding its dismissal would not have been changed, because the judgment of the Second Appeal vide S.A. No.331 of 1989 has been pronounced on 30.01.2024 on merit after hearing in full from the learned counsels of both the sides. Therefore, substitution of the LRs of the appellant would not have changed the ultimate conclusion/result of S.A. No.331 of 1989, which has been arrived through its judgment. For which, the non-substitution of the LRs of the appellant shall not entail for recalling the pronounced judgment of S.A. No.331 of 1989. On this aspect, the propositions of law has already been clarified in the ratio of the following decisions:- (i) AIR 1972 (Orissa) 56—Harinarayan Bohidar Vrs. The Sambalpur University—(Para 6)—where the ultimate Page 7 of 11 {{ 8 }} conclusion is based on admission, absence of reasonable opportunity does not vitiate the finding. (ii) 2016 (II) OLR 676—Saubhagyabati Jena Vrs. State of Odisha and Ors.—(Para 5)—When the principles of non-compliance of natural justice will not change the ultimate conclusion reached— (a) When evidence against the individual is thought to be utterly the compelling. (b) When it is felt that, a fair hearing would make no difference. (c) Where a hearing would not change the ultimate conclusion reached by the decision maker. 9. When the judgment of the S.A. No.331 of 1989 has been pronounced after hearing form the learned counsels of both the sides and when, even if, the LRs of the sole appellant of S.A. No.331 of 1989 would have been substituted in her place, still then, the ultimate conclusion reached regarding the dismissal of that Second Appeal vide S.A. No.331 of 1989 would not have been changed, then at this juncture, the non-substitution of the LRs of the sole appellant cannot be a ground for recalling the final judgment passed in S.A. No.331 of 1989 on dated 31.01.2024. There is a State law in the State of Punjab and Haryana in support of the above conclusion that, in case of death of the defendant, who was served and defending the suit/appeal, it is the duty of his/her LRs to come on record themselves and in absence of the same, the suit/appeal does not abate and the decree passed is a valid decree. Page 8 of 11 {{ 9 }} The propositions of the above State laws has already been clarified in the ratio of the following decisions: (i) 2010 (1) Civil Court Cases 628 (P & H)—Jagsir Singh Vrs. Mahasha Dev Raj—CPC, 1908—Order 22 Rule 2-B and Order 22 Rule 4 (3) (as in P & H)—Defendant, who was served and had been defending his case, on his death, it was the duty of his legal representatives to have come on record themselves—In absence of the same, the suit did not abate and the decree passed would be a valid decree. (ii) 2013 (2) Civil Court Cases 120 (P & H)—Nirmala Devi & Ors. Vrs. Jeet Singh and Ors.—CPC, 1908—Order 22 Rules 3 & 4—abatement—Non-substitution of LRs—Even if application for impleading legal representatives of a deceased plaintiff or deceased defendant is not made, the suit shall not abate and notwithstanding the death, the suit may be decided and the judgment shall have the same effect as if it had been pronounced before the death took place. 10. When, the learned counsel for the appellant has stated in I.A. No.136 of 2024 that, the sole appellant had expired on 17.09.2018 and when the proposed LRs of the appellant are none else, but they are the four sons of the appellant having aged about 49, 52, 51 & 45 years respectively and when the learned counsel for the appellant was participating in the hearing of the Second Appeal vide S.A. No.331 of 1989 without disclosing the death of the appellant up to the pronouncement of judgment of that S.A. No.331 of 1989 in presence of the learned counsel for the appellant on dated 31.01.2024, then the above conduct of learned counsel for the appellant and the proposed LRs of the appellant in S.A. No.331 of 1989 (those are the sons of the appellant) is Page 9 of 11 {{ 10 }} going to show that, the learned counsel for the appellant from the sons of the appellant in S.A. No.331 of 1989 as well as four sons of that appellant were fully aware about the death of the appellant and pendency of the said Second Appeal filed by the appellant, but in spite of knowing the same very well, they had deliberately and intentionally participated in the hearing of the Second Appeal through the learned counsel for the appellant suppressing the death of the appellant and having been failed/defeated from the Second Appeal vide S.A. No.331 of 1989 as per its judgment dated 31.01.2024, they (sons of the appellant) have filed these aforesaid I.As praying for recalling the final judgment passed in S.A. No.331 of 1989 on the ground of non-substitution of L.Rs of the appellant, for no other reasons, but in order to harass the successful respondents in S.A. No.331 of 1989 unnecessarily protracting the litigation through these I.As. So, by applying the principles of law enunciated in the aforesaid decisions referred to supra to the conduct of the sons of the appellant in S.A. No.331 of 1989 as discussed above on facts and law, there is no justification under law for recalling the pronounced judgment of S.A. No.331 of 1989. Page 10 of 11 {{ 11 }} Therefore, the I.As Nos.136, 39, 40 & 41 of 2024 filed at the behest of the sons of the appellant in S.A. No.331 of 1989 are dismissed on contest, but without cost. Accordingly, the I.As Nos.136, 39, 40 & 41 of 2024 are disposed of finally. 11. But, in order to keep/maintain the status of the parties in the records of the trial court as correct, the Trial Court is directed to substitute the sons of the appellant of S.A. No.331 of 1989 (who was the plaintiff in the suit vide T.S. No.59 of 1975) in her place as her LRs, on the basis of the names of her LRs indicated in I.A. No.39 of 2024 for its future reference as per the direction of this Court through this judgment. So, Registry is directed to transmit the copies of the applications of these I.As to the Trial Court along with the LCRs of the Second Appeal vide S.A. No.331 of 1989 and copy of this judgment/order for proper compliance as directed above. Orissa High Court, Cuttack. 18th April, 2024//Utkalika Nayak// Junior Stenographer Signature Not Verified Digitally Signed Signed by: UTKALIKA NAYAK Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 19-Apr-2024 13:57:03 (A.C. Behera), Judge. Page 11 of 11