Rohit Kumar Pradhan @ Rohit v. Priyambada Behera @ Tempo & Ors.

ORDER 18.07.2023

1. This matter is taken up through hybrid mode.

Order dated 9th January, 2023 (Annexure-1) passed by learned Senior Civil Judge, Rairakhol in Title Suit No.206/1 of 2000-17 is under challenge in this CMP, whereby an application under Order XXII Rule 3 CPC for substitution of deceased Plaintiff No.2 has been allowed.

Mr. Satapathy, learned counsel for the Petitioner submits that after death of Plaintiff No.2 the surviving Plaintiffs without filing an application under Order XXII rule 3 CPC filed an application under Order I Rule 10 CPC for impletion of legal heirs of deceased Plaintiff No.2. The said application was allowed. Assailing the same, the Petitioner preferred W.P.(C). No.4904 of 2011 which was disposed of on 31st July, 2018 with the following direction:

It is, at this stage of the matter, this Court while not giving much attachment to the nomenclation of the petition considered vide the impugned order, but for the exigency in the contest of the legal heirs of the plaintiff No.2 observes that the application so filed could have been treated as a petition under Order 22 Rule 4 of the CPC for substitution // 2 // as against the plaintiff No.2 and considered the same accordingly. As a result, this Court interfering in the order involving application under Order 1 Rule 10 of CPC, and permits the Petitioner to file an application for setting aside abatement of the suit within short time. After receipt of the petition for setting aside the abatement within the time granted, the trial Court shall do well in passing appropriate order in the matter of substitution in respect of the Plaintiff No.2.

Although, a direction was made that an application for conversion of the petition to one under Order XXII Rule 3 CPC should be filed within a short time, but no step was taken by the Plaintiffs-Opposite Parties within reasonable period. After a lapse of almost four years, an application for conversion of the petition was along with petitions for setting aside abatement.

Learned trial Court failed to appreciate that the Plaintiffs Opposite Party did not comply with the direction of this Court in W.P.(C). No.4904 of 2011 in its letter and spirit. They casually filed an application on 28th October, 2022 which was considered and substitution of deceased plaintiff No.2 was allowed causing serious hardship to the present Petitioner, who is Defendant No. 1 in the suit. Although, an application for substitution was entertained after a lapse of more than four years, learned trial Court did not consider to compensate the Petitioner on payment of cost for the prejudice caused to him. In the view of the matter, the impugned order warrants interference.

Considering the submission made by learned counsel for the Petitioner and on perusal of the record, it appears that although this Court in W.P.(C). No. 4904 of 2011 directed to file an application for conversion of application to one under Order XXII Rule 3 CPC within a short time, but the same was filed after lapse of more than four years. However, the suit is for // 3 // partition and considering the case, this Court has directed as above. In that view of the matter, learned trial Court has committed no error in allowing such application. But taking into consideration the hardship caused to the Petitioner- Defendant No.1, it should have awarded some cost.

Accordingly, this Court, without interfering with the impugned order, disposes of the CMP with a direction that if an application is filed by the Petitioner-Defendant No.1 for award of adequate cost for substitution of deceased Plaintiff No.2 after lapse of more than four years, the same shall be considered by learned trial Court in accordance with law giving opportunity of hearing to the parties concerned. Urgent certified copy of this order be granted on proper application. Rojalin Judge (K.R. Mohapatra) Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Jul-2023 19:35:01