The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO. 232 OF 2024 …. Nirmal Ch. Kar and another Petitioners Mr. S.S.K. Nayak, Advocate Gangadhar Kar and others …. Opp. Parties -versus- CORAM: JUSTICE K.R. MOHAPATRA Order No. 1. 1. 2.
Decision
ORDER 22.03.2024 This matter is taken up through hybrid mode. Order dated 22nd January, 2024 (Annexure-5) passed in C.S. No.433 of 2013 is under challenge in this CMP, whereby learned Addl. Senior Civil Judge, Kendrapara rejected an application filed by Defendant Nos.5 and 7 to issue notice to the proposed legal heirs of the deceased Defendant Nos.12 and 19 for consideration of the application filed under Order XXII Rule 4 C.P.C. 3. Mr. Nayak, learned counsel for the Petitioners submits that the suit has been filed for partition and declaration as well as for permanent injunction. During pendency of the suit, the Defendant Nos.12 and 19 died. No petition for their substitution was filed within the statutory period. Hence, the suit was abated against the deceased Defendant Nos.12 and 19. However, after lapse of more than thirteen months, two applications were filed for substitution of the deceased Defendant Nos.12 and 19 without filing any application for setting aside abatement or condonation of delay. Hence, the Petitioners, namely, Defendant Nos.5 and 7, filed an application to issue notice to the proposed Page 1 of 4 // 2 // legal heirs of the Deceased Defendant Nos.12 and 19 before the petition under Order XXII Rule 4 C.P.C. is taken up for consideration. Learned trial Court simply quoting the provision under Order XXII Rule 4 C.P.C. rejected the application holding that no notice is required to be issued to the proposed legal heirs of the deceased Defendant Nos.12 and 19 for consideration of the application under Order XXII Rule 4 C.P.C. Hence, this CMP has been filed. 3.1 In support of the case of the Petitioners, Mr. Nayak, learned counsel relied upon the case of Rautani Bewa and others –v- Rupei Bewa and Gurubari Bewa and others, reported in Vol.33 (1967) CLt 951, wherein it is held as under: the right whether “A valuable right had accrued to the legal representatives of the deceased after the suit abated against the original defendant no. 16. In any case of infringement of statutes specifically provide for service of notice or not, notice is mandatory. It is unnecessary to refer to plethora of authorities. It is sufficient to refer to M. Nizamul v. Mst. Bibi', and Om Srun v. Gur Harain". This doctrine is based on principle of natural justice that the case against a party or a person who at the moment is not actually a party but is going to be impleaded as a party in future is not to be affected without his being heard and being given full opportunity of adducing evidence in defence. A similar matter was discussed in Prahald Prusty v. Sk. Abdul Raheman, under Order 9, Rule 4 Civil Procedure Code which does not prescribe for service of notice, This Court observed thus: "The position therefore is that generally a notice to the opposite party is not essential in a proceeding under Order 9, Rule 4, Civil Procedure Code. There may, however, be cases where a valuable right of the defendant may be affected. In such cases service of notice is mandatory." Page 2 of 4 // 3 // The learned Subordinate Judge therefore committed an illegality and exercised his jurisdiction with material irregularity in not issuing notice of the for substitution and setting aside application abatement the the legal representatives of to deceased.” 4. In view of the above, notice to the proposed legal heirs of the deceased Defendant Nos.12 and 19 is mandatory before consideration of the application under Order XXII Rule 4 C.P.C. Hence, he prays for setting aside the impugned order under Annexure-5. 5. Taking note of the submission made by learned counsel for the Petitioner and on perusal of the record, it appears that the impugned order is cryptic one. Learned trial Court has not assigned any reason as to why notice need be issued to the proposed legal heirs of the deceased Defendant Nos.12 and 19 before consideration of the application under Order XXII Rule 4 C.P.C. for their substitution. In the case of Rautani Bewa and others (supra), this Court has categorically held that doctrine of issuance of notice to a party to be impleaded is based on principle of natural justice that the case against a party or a person, who at the moment is not actually a party but is going to be impleaded as a party in future is not to be affected without his being heard and being given full opportunity of adducing evidence in defence. In the instant case, the suit has already abated against Defendant Nos.12 and 19. Thus, a right has accrued to the legal heirs of the deceased Defendant Nos.12 and 19 since no substitution was made during the statutory period. As such, they are required to be heard before their impleation as parties to the suit. Hence, this Court is of the considered opinion Page 3 of 4 // 4 // that learned trial Court has committed an error in holding that no notice need be issued to the proposed legal heirs of the deceased Defendant Nos.12 and 19 for consideration of the petition under Order XXII Rule 4 C.P.C. As such, the impugned order under Annexure-5 is set aside and learned trial Court is directed to issue notice to the proposed legal heirs of the deceased Defendant Nos.12 and 19 before taking up the application under Order XXII Rule 4 C.P.C. for hearing. 6. 7. The CMP is accordingly disposed of. Since the CMP is disposed of without issuing notice to the Plaintiff-Opposite Party No.1, he is at liberty to seek for variation of this order, if he fees aggrieved. 8. Urgent certified copy of this order be granted on proper application. bks Judge (K.R. Mohapatra) Signature Not Verified Digitally Signed Signed by: BIJAY KUMAR SAHOO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 28-Mar-2024 17:19:27 Page 4 of 4