The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO.298 OF 2022 Mahabir Khuntia and another .... Petitioners Mr. Amit Prasad Bose, Advocate -versus- Biranchi Narayan Khuntia and others …. Opp. Parties Mr. Pronoy Mohanty, Advocate (For Opp. Party No.1) CORAM: JUSTICE K.R. MOHAPATRA Order No. ORDER 24.01.2023 3. 1. This matter is taken up through hybrid mode. 2. Although this matter was listed for orders on the interim application, on consent of learned counsel for the parties, the matter is taken up for final disposal. 3. The Petitioners in this CMP seek to assail the order dated 10th December, 2021 (Annexure-5 series) passed in T.S. No.106 of 1992, whereby learned Civil Judge (Junior Division), Puri allowed the application under Order XXII Rule 4 C.P.C. by substituting one Rajalaxmi Mohapatra in place of deceased
Legal Reasoning
Defendant No.2, namely, Janardan Khuntia. Although an application for recall of the said order was filed, but the same was dismissed on 7th April, 2022 under Annexure-1. Hence, this CMP has been assailing both the orders.
Legal Reasoning
4. Mr. Bose, learned counsel for the Petitioners submits that Defendant Nos.3 & 4 and Plaintiffs are Petitioners and Opposite Party Nos.1 and 2 respectively in this CMP. During pendency of the suit, the Defendant No.2-Janardan Khuntia Page 1 of 5 // 2 // died. Thus, the Plaintiffs filed an application under Order XXII Rule 4 C.P.C. to substitute one Rajalaxmi Mohapatra as the widow of said Janardan Khuntia. Objection was filed by the Petitioners to the said application stating that the Defendant No.2 was living/staying with them in joint family and joint mess under one roof. Said deceased Defendant No.2 was a bachelor and description of Rajalaxmi Mohapatra provided on the foot of the petition for substitution was also incorrect. Learned trial Court vide order dated 7th December, 2021 (Annexure-5 series) considering such application directed as under: “Hence, for the interest of justice, the Plaintiff is hereby directed to produce any kind of documentary evidence related to the relationship the deceased-Defendant No.2 and between Rajalaxmi Mohapatra”. 5. Since the suit is of the year, 1992, it was posted to 9th December, 2021 for filing documents on which date the Plaintiffs filed an affidavit stating that since Rajalaxmi Mohapatra was suffering from Leprosy, no documentary evidence on her behalf could be obtained at that point of time. Hence, a prayer was made to accept the affidavit and allow the application for substitution of Rajalaxmi Mohapatra in place of the legal heirs of the deceased Defendant No.2. 6. The Petitioners vehemently objected to the same and submitted that the petition filed by the Plaintiffs is not at all maintainable and no order of substitution can be made on the basis of the affidavit when existence of the legal heirs of the deceased Defendant No.2 is in dispute. The matter was then Page 2 of 5 // 3 // posted to 10th December, 2021 for orders. On the said date, learned trial Court without making any enquiry with regard to relationship of the deceased Defendant No.2 with said Rajalaxmi Mohapatra, allowed the application on the basis of the said affidavit filed by the Plaintiffs. Thereafter, the Petitioners filed an application to recall the said order, which was also dismissed vide order dated 7th April, 2022 (Annexure- 1). 7. It is further submitted by Mr. Bose, learned counsel for the Petitioners that neither any document to the effect that said Rajalaxmi Mohapatra was suffering from Leprosy was produced nor there is any reason as to why no documentary proof with regard to relationship between the deceased Defendant No.2 and Rajalaxmi Mohapatra could be produced, only because she was allegedly suffering from Leporsy. In such an event, learned trial Court ought to have made an enquiry under Order XXII Rule 5 C.P.C. without relying upon the affidavit filed by the Plaintiffs. Hence, he prays for setting aside the impugned orders and to remit the matter back to the learned trial Court to make an enquiry under Order XXII Rule 5 C.P.C. and pass an order on the petition filed under Order XXII Rule 4 C.P.C. for substitution of the legal heirs of the deceased Defendant No.2. 8. Mr. Mohanty, learned counsel for the Opposite Party No.1 vehemently objected to the same and contended that the suit is of the year, 1992. In absence of any other document, the Court can take into consideration the affidavit filed by the party in terms of the provisions under Order 19 C.P.C. By Page 3 of 5 // 4 // substituting Rajalaxmi Mohapatra, she cannot be said to be the legal heir of Defendant No.2, but she will only represent the estate of the said deceased Defendant No.2. Thus, learned trial Court has committed no error in passing the impugned orders. He, therefore, prays for dismissal of CMP. 9. Considering the rival contentions of the parties and on perusal of the record, it appears that vide order dated 7th December, 2021, learned trial Court has directed the Plaintiffs to produce documentary evidence to establish the relationship between the deceased Defendant No.2 and Rajalaxmi Mohapatra. But, on the next day, i.e. on 9th December, 2021, an affidavit was filed by the Plaintiffs stating that since said Rajalaxmi Mohapatra was suffering from Leporsy, no documentary proof with regard to her successorship could be obtained. It appears from the impugned order dated 10th December, 2021 that learned trial Court has accepted such contention. 10. Only because Rajalaxmi Mohapatra was allegedly suffering from Leporsy, it cannot be said that no documentary proof to establish the relationship, if any, between her and the deceased Defendant No.2 cannot be produced. When the Petitioners categorically alleged that the deceased Defendant No.2 was a bachelor and Rajalaxmi Mohapatra is not related to his family, learned trial Court ought to have made an enquiry under Order XXII Rule 5 C.P.C. to find out the truth with regard to representation of Defendant No.2. Page 4 of 5 // 5 // 11. True it is that the suit is of the year, 1992, but that cannot obviate the procedure provided under the Code of Civil Procedure. In the instant case, it appears that merely basing upon the affidavit filed by the Plaintiffs, an application under Order XXII Rule 4 C.P.C. has been allowed ignoring that the said petition was vehemently objected by the Petitioners by filing a written objection. The objection raised by the Petitioners appears to have not been discussed by learned trial Court while adjudicating the petition. 12. In that view of the matter, this Court feels that neither the order dated 10th December, 2021 nor the order dated 7th April, 2022 is sustainable. Accordingly, both the orders are set aside and the matter is remitted back to the learned trial Court for consideration of the petition under Order XXII Rule 4 C.P.C. filed by the Plaintiffs for substitution of the legal heirs of the deceased Defendant No.2 giving opportunity of hearing to the parties concerned and by adhering to the procedure of the Code of Civil Procedure. 13. With the aforesaid observation and direction, the CMP
Decision
is disposed of. 14. The interim order dated 25th April, 2022 passed in I.A. No.349 of 2022 stands vacated. Urgent certified copy of this order be granted on proper application. bks (K.R. Mohapatra) Judge Page 5 of 5