Banijya Laxmi Ray vs Malaya Kumar Das

K.R. Mohapatra, J

This matter is taken up through hybrid mode.

The Petitioner in this writ petition seeks to assail the order dated 25th February, 2012 (Annexure-3) passed by learned Civil Judge (Senior Division), Rourkela in C.S. No.215 of 2008, rejecting an application under Order XXII Rule 4(4) CPC.

It is submitted by Mr. Maharana, learned counsel for the Petitioner that the suit has been filed for specific performance of contract. The suit property originally belonged to Defendant No.1. Defendant No.2 is the Power of Attorney Holder of Defendant No.1. Defendant No.1 through his Power of Attorney Holder, Defendant No.2, executed a sub-lease deed in favour of Defendant No.3, with whom the Plaintiff has entered into an agreement for purchase of the suit property and has paid Rs.2,35,000/- towards part consideration to purchase the property after obtaining due permission from the Collector, Rourkela. Notice on Defendant No.1 was made sufficient through paper publication. But, he did not appear and was set ex parte. Defendant No.3 although filed his written statement was subsequently set ex parte. At that juncture, the Defendant No.2 filed a memo stating that Defendant Nos.1 and 3 have died. Plaintiff after thorough enquiry could only find out that the Defendant Nos.1 and 3 have died. Since Defendant Nos.1 and 3 have already been set ex parte, an application under Order XXII Rule 4(4) CPC was filed to exempt her from substituting them.

Learned trial Court while considering the application observed that Defendant Nos.1 and 3 are necessary parties to the suit. Defendant No.2 is only the Power of Attorney Holder of Defendant No.1 in respect of the suit schedule property. Learned trial Court further held that the requirement of Rule 4(4) Order 22 CPC is not satisfied in respect of Defendant No.1, as he has not filed any written statement. So far as Defendant No.3 is concerned, learned trial Court held that vide order dated 26th August, 2011 it was recorded that the Plaintiff will face the consequences, if the Defendant Nos.1 and 3 is found to be dead. As the Defendant Nos.1 and 3 are the necessary parties and are not substituted, the petition under Order XXII Rule 4(4) CPC has been rejected.

None appears for the Opposite Party although he is represented through learned counsel.

Considering the submission made by Mr. Maharana, learned counsel for the Petitioner and on perusal of the impugned order under Annexure-3, it appears that the date of death of Defendant Nos.1 and 3 could not be ascertained, as it was not disclosed by Defendant No.2 and the Plaintiff in spite of her best effort, could not find out the same. Fact remains that the Plaintiff has entered into an agreement for purchase of the property with Defendant No.3, which is stated to be in the knowledge of Defendant Nos.1 and 2. Thus, the date of death of Defendant No.3 is vital for consideration of any application either for substitution under Order XXII Rule 4 or Order XXII Rule 4(4) CPC. If the suit has abated for his non-substitution before he was set ex parte, then an application under Order XXII Rule 4 (4) CPC may not be maintainable. Further the Defendant No.1 had not filed any written statement. Thus, an application under Order XXII Rule 4(4) CPC may not be maintainable against him.

At this stage, Mr. Maharana, learned counsel for the Petitioner submits that since the suit is of the year, 2008 and further proceeding of the suit has been stayed pursuant to the interim order passed by this Court on 1st November, 2012 in Misc. Case No.9753 of 2012, interest of justice will be best served, if the Plaintiff makes a thorough enquiry about the date of death of Defendant Nos.1 and 3 and file appropriate application for consideration by learned trial Court.

Accordingly, this Court without expressing any opinion on the merits of the impugned order under Annexure-3, disposes of the writ petition with a direction that in the event, the Petitioner after a reasonable enquiry files appropriate application, as aforesaid for consideration of learned trial Court, the same shall be considered in accordance with law without being influenced by the observation made in the order under Annexure-3.

Interim order dated 1st November, 2012 passed in Misc. Case No.9753 of 2012 stands vacated.

Urgent certified copy of this order be granted on proper application..

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