The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRP No.23 of 2023 (In the matter of an application under Section 115 of the Code of Civil Procedure) M/s. Bluline Resorts Pvt. Ltd., represented through its Managing Director, Mr. Debasish Patnaik …. Petitioner -versus- M/s. Hotel Sea Point Pvt. Ltd, represented its Director, through Usha Jena …. Opposite Party Appeared in this case:- For Petitioner For Opposite Party : : Appeared in this case:- CORAM: JUSTICE A.C. BEHERA
Legal Reasoning
Mr. Avijit Pal, Advocate Mr. G. Samantaray, Advocate assisted by Mr. S. Routray, Advocate JUDGMENT Date of hearing : 03.03.2025 / date of judgment : 03.04.2025 A.C. Behera, J. This revision under Section 115 of the C.P.C., 1908 has been filed by the petitioner(defendant in the pending suit vide C.S. No.462 of 2017 in the court of learned Additional Civil Judge, Sr. Division, Puri) against an order of rejection to its petition under Order-7, Rule- 11(d) of the C.P.C., 1908 passed on dated 06.05.2023. 2. The factual backgrounds of this revision, which prompted the petitioner for filing of the same is that, the petitioner being the defendant in the suit vide C.S. No.462 of 2017 of the plaintiff-company filed a petition on dated 07.09.2022 under Order-7, Rule-11(d) of the C.P.C., 1908 praying for rejection of the plaint of the plaintiff-company on the ground that, the suit of the plaintiff-company vide C.S. No.462 of 2017 is barred under law being hit by the provisions of res judicata as per Section 11 of the C.P.C., 1908 stating that, the dispute between the parties for the same subject matter has already been adjudicated / decided by the sole arbitrator in an arbitration proceeding bearing No.349 of 2014 by the Hon’ble Former Justice Mr. M.M. Das of the High Court of Orissa, as an Arbitrator thereof, for which, according to the defendant, the dispute concerning the same subject matter cannot be adjudicated/decided again in the subsequent suit vide C.S. No.462 of 2017 filed by the plaintiff-company. So, the defendant prayed for rejection of the plaint of the plaintiff-company by filing a petition on dated 07.09.2022 under Order-7, Rule-11(d) of the C.P.C., 1908, to which, the plaintiff-company objected by filing its written objection. Page 2 of 10 3. After hearing from both the sides, the learned Additional Civil Judge(Sr. Division), Puri rejected to the petition dated 07.09.2022 under Order-7, Rule-11(d) of the C.P.C. of the defendant as per order dated 06.05.2023 assigning the reasons that, the suit of the plaintiff-company is for recovery of possession, realization of arrear rents and mesne profits along with other consequential relief(s) and the cause of action for filing of the suit by the plaintiff-company is civil in nature, for which, the same is adjudiciable in the civil court. So, the suit of the plaintiff-company is not barred under law. 4. On being dissatisfied with the above order, i.e., rejection of the petition under Order-7, Rule-11 of the C.P.C. of the defendant passed by the learned Additional Civil Judge(Sr. Division), Puri on dated 06.05.2023, the defendant challenged the same by filing this revision being the petitioner against the plaintiff-company arraying the plaintiff- company as Opposite Party on the ground that, non-substitution of the Managing Director of the plaintiff-company after his death, as per order dated 06.07.2018, the suit vide C.S. No.462 of 2017 was abated and as such, the suit was not in existence being abated, then, during the subsistence of such abatement, the trial court should not have rejected to the petition dated 07.09.2022 under Order-7, Rule-11(d) of the C.P.C., 1908 of the defendant on 06.05.2023. For which, according to the Page 3 of 10 petitioner of this revision, order of rejection to the petition dated 07.09.2022 under Order-7, Rule-11(d) of the C.P.C. of the petitioner/defendant on dated 06.05.2023 by the trial court is illegal and contrary to law. Therefore, the said order dated 06.05.2023(Annexure-1) passed by the trial court is to be set aside and that matter is required to be remitted back to the trial court for the consideration of the same afresh as per law. 5. I have already heard from the learned counsel for the petitioner/defendant and the learned counsel for the Opposite Party/Plaintiff. 6. During the course of hearing of this revision, in order to assail the impugned order, the learned counsel for the petitioner/defendant relied upon the decision of the Apex Court between My Palace Mutually Aided Co-Operative Society vrs. B. Mahesh and others decided on 23.08.2022. On the contrary, in support of the impugned order dated 06.05.2023 passed by the trial court, the learned counsel for the Opposite Party (plaintiff-company) relied upon the decisions reported in (1996) 6 SCC 660, United Bank of India vrs. Naresh Kumar and others, AIR online 2003 S.C. 537, Ram Chandra Singh vrs. Savitri Devi and others and AIR 1971 Allahabad-407, Didwania and Co.(P) Ltd. in Liquidation vrs. Jagdish Narain Indranarain and others. Page 4 of 10 7. The crux of this revision is, whether, as per law, the suit vide C.S. No.462 of 2017 filed by the plaintiff-company was abated on the basis of the order dated 06.07.2018 passed by the trial court and whether the trial court had power and jurisdiction to decide the petition dated 07.09.2022 under Order-7, Rule- 11 of the C.P.C. of the petitioner/defendant? 8. It is the undisputed case of the parties that, the plaintiff in the suit vide C.S. No.462 of 2017 is a company. The said suit vide C.S. No.462 of 2017 was filed by the plaintiff- company on being represented through human agency, i.e., through its Managing Director Durga Charan Routray to prosecute that suit on behalf of the plaintiff-company. 9. Due to non-substitution of the legal heirs of the deceased Managing Director of the plaintiff-company within its statutory period after his death, an order was passed by the learned trial court in the C.S. No.462 of 2017 on dated 06.07.2018 as per Annexure-5 about the abatement of that suit. 10. It appears from its next order-sheet dated 26.07.2018 after order- sheet dated 06.07.2018 that, a petition was filed by the plaintiff-company on the basis of the resolution in the meeting of the Board of Directors of Page 5 of 10 the plaintiff-company praying for recalling the order of abatement dated 06.07.2018 on the ground that, as per law, the suit vide C.S. No.462 of 2017 of the plaintiff-company cannot be abated for non-substitution of the LRs of its Managing Director, because, the suit was not filed by the Managing Director of the plaintiff-company, but, by the plaintiff- company. It was argued on behalf of the plaintiff-company(Opposite Party in this revision) that, had there been abatement of the suit vide C.S. No.462 of 2017 of the plaintiff-company on dated 06.07.2018 as per law, the defendant would not have filed petition on dated 07.09.2022 under Order-7, Rule-11(d) of the C.P.C. praying for rejection of the plaint of the suit of the plaintiff-company. According to him, (the learned counsel for the Opposite Party) knowing fully well that, the suit of the plaintiff-company vide C.S. No.462 of 2017 has not been abated as per law on dated 06.07.2018, the defendant had filed petition under Order-7, Rule-11(d) of the C.P.C., 1908 on dated 07.09.2022 praying for rejection of the plaint of plaintiff- company and accordingly, the defendant had participated in the hearing of its petition dated 07.09.2022 without raising any question about the abatement of that suit on dated 06.07.2018 and after rejection of the petition dated 07.09.2022 of the defendant by the trial court as per order Page 6 of 10 dated 06.05.2023, the defendant has challenged the same by filing this revision raising such question for the first time about the abatement of the suit vide C.S. No.462 of 2017 of the plaintiff-company on dated 06.07.2018, for which, the defendant is estopped under law to challenge the impugned order dated 06.05.2023 on the ground of lawful abatement of the suit vide C.S. No.462 of 2017 of the plaintiff-company on dated 06.07.2018. 11. It is very fundamental in law that, a company is a juristic person and when any suit is filed by or against any juristic person like the plaintiff-company, the said plaintiff-company must be represented through a human being. The death of the representative of the plaintiff-company through which, the suit vide C.S. No.462 of 2017 was filed by the plaintiff- company, cannot be equated with the death of the plaintiff-company. 12. The propositions of law on this aspect has already been clarified by the Hon’ble Courts and Apex Court in the ratio of the following decisions:- (i) In a case between Didwania and Co.(P) Ltd. in Liquidation vrs. Jagdish Narain Indranarain and others : reported in AIR 1971 Allahabad-407 (para-3) that, a suit cannot possibly abate, when the parties to it are alive. Company is a juristic personality. The death of the liquidator of the company cannot be equated with the death of a party to the suit. Since the plaintiff-company was alive, the suit could not be declared to Page 7 of 10 have abated by reason of the death of one of the persons, through whom the plaintiff-company had sued. In a case between Swamy Vedya Nondji Moharaj vrs. (ii) Shyamlal Chowhan : reported in 2024(3) Civil Law Judgment S.C.-658 that, the main object/purpose behind substitution is continuance of a case, because, mere substitution of a person as L.R of the deceased by itself will not create any title in favour of person substituted. 13. As per law, when, after the death of the Managing Director of the plaintiff-company, (through whose representation, the suit vide C.S. No.462 of 2017 was filed by the plaintiff-company), the suit of the plaintiff-company vide C.S. No.462 of 2017 shall not abate as, the plaintiff-company has not died and when the man object/purpose of substitution is for continuance of the suit and when after knowing very well about the order dated 06.07.2018 passed by the trial court in C.S. No.462 of 2017, the defendant filed the petition on dated 07.09.2022 under Order-7, Rule-11(d) of the C.P.C. praying for rejection of plaint of the plaintiff-company and also participated in the hearing of such petition without raising any question about the abatement of the suit on dated 06.07.2018 and when after rejection of that petition dated 07.09.2022 of the defendant on dated 06.05.2023, the defendant challenged the same through this revision raising a question for the first time that, the suit of the plaintiff-company vide C.S. No.462 of 2017 was not in existence on the date of the impugned order, i.e., on dated 06.05.2023 due to its abatement on dated 06.07.2018, then, at this juncture, by taking the Page 8 of 10 above conduct of the defendant into account, it is held that, the defendant is estopped under law to challenge the impugned order dated 06.05.2023 through this revision on the ground of abatement of the suit on dated 06.07.2018. Because, it has been clarified in the ratio of the above decision reported in AIR 1971(Allahabad)-407, that, any suit of any plaintiff-company like the suit vide C.S. No.462 of 2017 at hand cannot abate as per law on dated 06.07.2018 for non-substitution of the legal heirs of its Managing Director Durga Charan Routray, because, the death of the Managing Director of the plaintiff-company cannot be equated with the death of the plaintiff-company. So, the above grounds raised on behalf of the petitioner(defendant) to assail the impugned order dated 06.05.2023 passed by the learned trial court in the suit vide C.S. No.462 of 2017 are not tenable under law. For which, there is no justification under law for making any interference with the impugned order dated 06.05.2023(Annexure-1) passed by the trial court in C.S. No.462 of 2017 through this revision filed by the petitioner. So, the decision relied upon by the petitioner(defendant) indicated above in Para No.6 of this revision are not applicable to this revision on facts as discussed above. Page 9 of 10 Therefore, there is no merit in the revision of the petitioner(defendant). The same must fail. 14. In result, the revision filed by the petitioner is dismissed on contest, but, without cost. 15. Accordingly, the revision filed by the petitioner(defendant) is
Decision
disposed of finally. ( A.C. Behera ) Judge Orissa High Court, Cuttack The 3rd of April, 2025/ Jagabandhu, P.A. Signature Not Verified Digitally Signed Signed by: JAGABANDHU BEHERA Designation: Personal Assistant Reason: Authentication Location: OHC, CUTTACK Date: 04-Apr-2025 18:58:29 Page 10 of 10