Ghanashyam Billia @ Birlia vs Rita Bibhar And Others

K.R. Mohapatra, J

This matter is taken up through hybrid mode.

Order dated 5th May, 2023 (Annexure-1) passed by learned Civil Judge, Bargarh in T.S. No.120/68 of 1999/13 is under challenge in this CMP, whereby an application for substitution of Plaintiff has been allowed without any prayer for condonation of delay and setting aside abatement.

Mr. Mahapatra, learned counsel for the Petitioner submits that the sole Plaintiff, namely, Desharam Bibhar died on 23rd February, 2013 and the petition for substitution was filed by his legal heirs on 30th January, 2023. Thus, by the time the petition for substitution under Order XXII Rule 3 CPC was filed, the suit had already abated. The petition for substitution is also barred by limitation. No petition for setting aside abatement and condonation of delay accompanied the petition for substitution. Thus, in absence of any prayer for condonation of delay and setting aside abatement, a petition under Order XXII Rule 3 CPC could not have been entertained by learned trial Court. The petition was allowed on the observation that further proceeding of the suit was stayed by this Court till disposal of Second Appeal No.134 of 1997. The said order was vacated on 21st June, 2022. Thereafter, notice was issued to both the parties. Thus, the legal heirs of Plaintiff came to know about the pendency of the suit when notices were issued by learned trial Court after vacation of the interim order. It further observed that right to sue survives with the legal heirs of deceased Plaintiff. Hence, the petition for substitution was allowed.

It is his submission that in absence of any prayer for condonation of delay and setting aside abatement, learned trial Court could not have entertained an application under Order XXII Rule 3 CPC in the year, 2023 when the death of the Plaintiff had occurred in the year 2013. He, therefore, prays for setting aside the impugned order under Annexure-1 and to hold that the suit was abated.

Considering the submission made by learned counsel for the Petitioner, this Court feels that the legal heirs of the deceased Plaintiff should be given an opportunity to file application for setting aside abatement and condonation of delay in filing the petition for substitution of deceased Plaintiff. Keeping in mind that the issuance of notice to the Opposite Parties will further delay in disposal of the suit, this Court disposes of the CMP setting aside the impugned order under Annexue-1.

It is directed that the legal heirs of the deceased Plaintiff should be given an opportunity to file petitions for setting aside abatement and condonation of delay in filing the petition for substitution of deceased Plaintiff under Order XXII Rule 3 CPC. If such petitions are filed by the legal heirs of the deceased Plaintiff within fourteen days from the date of production of certified copy of this order, learned trial Court shall do well to consider the same in accordance with law giving opportunity of hearing to the parties concerned and proceed with the suit accordingly.

The CMP is disposed of accordingly.

Since the CMP is disposed of without issuing notice to the Opposite Parties, they are at liberty to seek for variation of this order, if they feel aggrieved.

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

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