The High Court · 2025
Case Details
Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 07-Nov-2025 10:58:36 IN THE HIGH COURT OF ORISSA AT CUTTACK C.M.P. No.738 of 2025 (In the matter of an application under Article 227 of the Constitution of India) Umesh Chandra Pattnaik@ Pattanaik …. Petitioner -versus- Ambika Prasad Mohanty and others …. Opposite Parties Advocate(s) appeared in this case:- For Petitioner : Mr. S. Das, Advocate For Opposite Parties : Mrs. S. Jena, Advocate For O.P. No.1 CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 27th October 2025 B.P. Routray, J. 1. Since Opposite Parties 2 to 4 are proforma Opposite Parties, on
Legal Reasoning
the request of Mr. S. Das, learned counsel for the Petitioner, the notice on them is dispensed with for the time being. 2. Heard Mr. S. Das, learned Advocate for the Petitioner and Mrs. S. Jena, learned Advocate for Opposite Party No.1. 3. Present C.M.P. is directed against the order dated 17.02.2025 passed in C.M.A. No.72 of 2024 (arising out of C.S. No.111 of 2020) C.M.P. No.738 of 2025 Page 1 of 7 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 07-Nov-2025 10:58:36 by the learned Civil Judge (Sr. Divn.), Kujang, wherein the prayer of the Plaintiff (present Opposite Party No.1) to withdraw the C.M.A. was allowed granting liberty to him to file a better application. 4. Present Opposite Party No.1 being the Plaintiff filed C.S. No.111 of 2020 which was dismissed for default on 17.09.2024. Thereafter the Plaintiff filed an application for restoration of the suit on 30.09.2024 as per Order 9 Rule 9, C.P.C. which was registered as C.M.A. No.72 of 2024. Subsequently it came to the knowledge of the Plaintiff that during pendency of the suit and before its dismissal, Defendants 1, 3, 7 & 8 died in the meantime and therefore, a better application is required to be filed on behalf of the Plaintiff since the present C.M.P. is not maintainable against the dead persons. Thus, the Plaintiff filed a petition under Order 23 Rule 1, C.P.C. praying for withdrawal of C.M.A. with liberty to file a fresh application. 5. The Petitioner objects such prayer of the Plaintiff granting him leave to apply afresh while withdrawing the C.M.A. and according to him, the Plaintiff is not entitled to be granted with said leave since it was within his knowledge that those Defendants were died during pendency of the suit and he did not take any step for their substitution. C.M.P. No.738 of 2025 Page 2 of 7 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 07-Nov-2025 10:58:36 6. Conversely, it is submitted by Mrs. S. Jena, learned counsel, on behalf of the Plaintiff that whatever may be the reason is, the admitted fact remains that by the time of filing of the petition under Order 9 Rule 9, C.P.C. said Defendants were already dead and a petition against a dead person is not maintainable. 7. The objection raised by the Plaintiff is found misconceived. Order 22 Rule 4 of the C.P.C. lays down that where no application is made within the time limited by law to implead the legal representatives of a deceased Defendant, the suit shall abate as against a deceased Defendant. This rule does not provide that by the omission to implead the legal representative of one Defendant, the suit will abate as a whole. If the interests of the co-defendants are separate, the suit will abate only as regards the particular interest of the deceased party. Order 9 Rule 9 of the C.P.C. confers right on the Plaintiff to apply for restoration of the suit provided he satisfies sufficient cause for his non- appearance. Dismissal of the suit for non-prosecution and restoration of the same is independent of the right of Plaintiff to substitute a deceased Defendant as per provisions contained Order 22 Rule 4 of the C.P.C. C.M.P. No.738 of 2025 Page 3 of 7 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 07-Nov-2025 10:58:36 8. The fact of death of Defendants 1, 3, 7 & 8 during pendency of the suit is undisputed. The suit was dismissed for default on 17.09.2024 and nowhere it was brought on record by Defendant No.2 that the death of such Defendants had ever been brought to the notice of the Plaintiff during pendency of the suit. So, it is not the case of the Defendants that death of Defendants 1, 3, 7 & 8 was within the knowledge of the Plaintiff before dismissal of the suit. Thus, the plea taken on the part of the Plaintiff that it was not within his knowledge during pendency of the suit regarding death of such Defendants is not found unbelievable. 9. The leave to file a better application within the scope of Order 23 Rule 1, C.P.C. is within the discretion of the court taking note of the fact of such reasons that, the suit may fail by reason that the adjudication of the suit cannot be completed without presence of such parties. 10. In K.S. Bhoopathy v. Kokila, (2000) 5 SCC 458, it has been explained as follows:- “12. The law as to withdrawal of suits as enacted in the present Rule may be generally stated in two parts: C.M.P. No.738 of 2025 Page 4 of 7 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 07-Nov-2025 10:58:36 (a) a plaintiff can abandon a suit or abandon a part of his claim as a matter of right without the permission of the court; in that case he will be precluded from suing again on the same cause of action. Neither can the plaintiff abandon a suit or a part of the suit reserving to himself a right to bring a fresh suit, nor can the defendant insist that the plaintiff must be compelled to proceed with the suit; and (b) a plaintiff may, in the circumstances mentioned in sub-rule (3), be permitted by the court to withdraw from a suit with liberty to sue afresh on the same cause of action. Such liberty being granted by the court enables the plaintiff to avoid the bar in Order II Rule 2 and Section 11 CPC. 13. The provision in Order XXIII Rule 1 CPC is an exception to the common law principle of non-suit. Therefore on principle an application by a plaintiff under sub-rule (3) cannot be treated on a par with an application by him in exercise of the absolute liberty given to him under sub-rule (1). In the former it is actually a prayer for concession from the court after satisfying the court regarding existence of the circumstances justifying the grant of such concession. No doubt, the grant of leave envisaged in sub-rule (3) of Rule 1 is at the discretion of the court but such discretion is to be exercised by the court with caution and circumspection. The legislative policy in the matter of exercise of discretion is clear from the provisions of sub-rule (3) in which two alternatives are provided; first where the court is satisfied that a suit must fail by reason of some formal defect, and the other where the court is satisfied that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim. Clause (b) of sub-rule (3) contains the mandate to the court that it must be satisfied about the sufficiency of the grounds for allowing the plaintiff to institute a fresh suit for the same claim or part of the claim on the same cause of action. The court is to discharge the duty mandated under the provision of the Code on C.M.P. No.738 of 2025 Page 5 of 7 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 07-Nov-2025 10:58:36 taking into consideration all relevant aspects of the matter including the desirability of permitting the party to start a fresh round of litigation on the same cause of action. This becomes all the more important in a case where the application under Order XXIII Rule 1 is filed by the plaintiff at the stage of appeal. Grant of leave in such a case would result in the unsuccessful plaintiff to avoid the decree or decrees against him and seek a fresh adjudication of the controversy on a clean slate. It may also result in the contesting defendant losing the advantage of adjudication of the dispute by the court or courts below. Grant of permission for withdrawal of a suit with leave to file a fresh suit may also result in annulment of a right vested in the defendant or even a third party. The appellate/second appellate court should apply its mind to the case with a view to ensure strict compliance with the conditions prescribed in Order XXIII Rule 1(3) CPC for exercise of the discretionary power in permitting the withdrawal of the suit with leave to file a fresh suit on the same cause of action. Yet another reason in support of this view is that withdrawal of a suit at the appellate/second appellate stage results in wastage of public time of courts which is of considerable importance in the present time in view of large accumulation of cases in lower courts and inordinate delay in disposal of the cases.” 11. In the case at hand, when the fact of knowledge of the Plaintiff regarding death of such Defendants is not established to be within his knowledge during pendency of the suit, the approach of the Plaintiff to withdraw the application under Order 9 Rule 9, C.P.C. with leave to apply afresh is seen with bonafide reasons on the part of the Plaintiff and falling within the scope of ‘some formal defect’ as envisaged in C.M.P. No.738 of 2025 Page 6 of 7 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 07-Nov-2025 10:58:36 Rule 1(3) of Order XXIII C.P.C. It is further necessary to add all such persons in the suit without whose presence the adjudication of the dispute cannot be completed. That apart, the objection of Defendant No.2 is with regard to non-substitution of deceased Defendants only. As stated earlier, restoration of the suit dismissed for non-prosecution and substitution of deceased Defendants are two different principles operated separately. Thus, taking note of all such factors and the circumstances of the case, the order of the learned trial court dated 17.02.2025 appears without any flaw and as such is confirmed by this Court. 12.
Decision
In the result, the C.M.P. is dismissed. (B.P. Routray) Judge B.K. Barik/Secretary C.M.P. No.738 of 2025 Page 7 of 7