Raghunath Samal @ Samantaray v. Biswabhusan @ Kushia Padhi & Ors.

Mr. Trilochan Panigrahi, Advocate -versus- Biswabhusan @ Kushia Padhi and others Opp. Parties …. CORAM: JUSTICE K.R. MOHAPATRA Order No.

ORDER 12.07.2024 This matter is taken up through hybrid mode. Order dated 19th February, 2024 (Annexure-1) passed by learned Civil Judge, Puri in C.S. No. 142 of 2016 is under challenge in this CMP, whereby an application filed by the Petitioners under Order XXII Rule 3 read with Order 1 Rule 10 C.P.C. has been rejected.

Mr. Panigrahi, learned counsel for the Petitioners submits that the suit has been filed for permanent injunction. The sole Plaintiff, namely, Sita Bewa, died on 17th July, 2023. An application under Order XXII Rule 3 read with Order 1 Rule 10 C.P.C. was filed by the Petitioners, who are her legal heirs for substitution. As the petition under Order XXII Rule 3 C.P.C. was filed beyond 90 days without application under Order XXII Rule 9 C.P.C., the said petition was rejected. He further submits that leave may be granted to the Petitioners to file a fresh application under Order XXII Rule 3 C.P.C. along with the petition under Order XXII Rule 9 C.P.C. as well as a petition under Section 5 of the Limitation Act and the same may be considered favourably without being influenced by any observation made in the impugned order.

Taking note of the submission of learned counsel for the Petitioner, this Court finds that the sole Plaintiff died on 17th July, 2023 and the petition for substitution was filed by the Petitioners on 17th October, 2023, which was beyond 90 days. In view of Order XXII Rule 3(2) C.P.C., the suit automatically abated for non-filing of the petition for substitution in time. Since it is submitted that the Petitioners have right to sue in the subject matter of dispute, they should be given an opportunity to pursue the suit.

Accordingly, this Court disposes of the CMP with a direction that in the event the legal heirs of the sole deceased Plaintiff file a fresh application under Order XXII Rule 3 C.P.C. for substitution along with a petition for setting aside abatement as well as a petition under Section 5 of the Limitation Act within a period of two weeks hence, the same shall be considered in accordance with law giving opportunity of hearing to the parties concerned without being influenced by any observation made in the impugned order. Urgent certified copy of this order be granted on proper application. (K.R. Mohapatra) Judge Signature Not Verified Digitally Signed Signed by: BIJAY KUMAR SAHOO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 16-Jul-2024 11:27:13