S.K. Samiruddin vs Najboon Bibi and Others

M.M. Das, J.—Heard Learned Counsel for the Petitioner & the Learned Counsel for the Opp. Parties 1 to 6 who have been allowed to be impleaded as parties to the suit, by the impugned order. One of the Defendants has filed this Writ Petition challenging the Order Dated 4.8.2011 passed by the Learned Civil Judge (Junior Division), Kendrapara in C.S.No. 316 of 2001 allowing an application under Order 1, Rule 10 C.P.C. filed by the legal heirs of the deceased Plaintiff No. 1, i.e. Usman Khan. The orders annexed as Annexure-1 disclose that when the Plaintiff No. 1-Usman Khan expired, an application for substitution under Order 22, was filed. The said application was rejected & thereafter, the legal heirs of the said deceased Plaintiff filed an application under Order 1, Rule 10 C.P.C. to be impleaded as parties. The Petitioner filed an objection stating that the said petition is not maintainable as the suit has already abated against the deceased Plaintiff &, therefore, provisions of Order 1, Rule 10 C.P.C. cannot be made applicable for impleading the legal heirs of the deceased Plaintiff as parties. The Learned Court below recording that this is a suit for partition & the suit has not been decided on merit by that date &, further, the Defendants have not questioned that the Petitioners in the application under Order 1, Rule 10 C.P.C. are not the legal heirs of deceased Plaintiff Usman Khan, inasmuch as the application under Order 22 for substitution of the legal heirs has been rejected on technical grounds, the provisions of Order 1, Rule 10 C.P.C. is squarely applicable & allowed the said application. Being aggrieved, the Defendant has filed the present Writ Petition.

Law is well settled that when an application for substitution under Order 22 is rejected, a fresh suit being barred on the same cause of action, the legal heirs cannot take recourse under Order 1, Rule 10 C.P.C. In the case of Durga Charan Parida Vs. Basant Kumar Parida and Others, this Court considering the said question, held as follows:

Order 22, CPC makes provision for substitution of the legal representatives of a party to the suit who dies during the pendency of the suit. It also provides that in the event of non-substitution of the legal representative of a deceased party, the suit abates as against the deceased party. There is no dispute that in some cases this partial abatement against the deceased party may amount to a dismissal of the entire suit. The said Order also provides that once a suit abates due to non-substitution of the legal representatives of a deceased party, a fresh suit is barred on the same cause of action. Order 1, Rule 10, CPC empowers the Court to enable it to effectively & completely adjudicate upon & settle all questions involving in the suit to add anybody as a party to the suit either as Plaintiff or Defendant. The jurisdiction conferred on the Court under Order 1, Rule 10, CPC is quite distinct from the jurisdiction conferred under Order 22, Civil Procedure Code. Under Order 22, Civil Procedure Code, when a suit abates against a deceased Defendant, a fresh suit is barred on the same cause of action, & therefore, a valuable right accrues to the legal representatives of the deceased Defendant against the Plaintiff. It can never be the intention of the Code to take away this valuable right accrued to the legal representatives of the deceased Defendant by taking resort to the provision contained in Order 1, Rule 10, Civil Procedure Code. To hold otherwise would amount to going against the scheme of the Code & would put the litigants to great hardship & prejudice. Therefore, I am of opinion that the Trial Court having dismissed the Plaintiff''s application for substitution, it had no jurisdiction to entertain an application under Order 1, Rule 10, CPC & to allow the same. By allowing the application Under Order 1, Rule 10 Civil Procedure Code, the Court has simply annulled its very own order previously passed while rejecting the Plaintiff''s application for substitution.

Again this Court had the occasion to deal with the said question in the case of Abhiram Naik Vs. Krushna Chandra Naik and Others, & relying upon the decision in the case of Durga Charan Parida (supra) held that there can be no doubt that on rejection of an application under Order 22, Rule 3 C.P.C. another application cannot be filed to implead the legal heirs as parties under Order 1, Rule 10 C.P.C. In view of the above, position of law, the Learned Trial Court fell into error in passing the impugned order & allowing the application under Order 1, Rule 10 C.P.C. filed by the Opp. Parties 1 to 6. The impugned order is, therefore, set aside & the said applicants, i.e. Opp. Parties 1 to 6 shall not be impleaded as parties in the suit.

The writ application is accordingly allowed. Interim orders passed on 22.11.2011 in Misc. Case Nos. 17731 & 17730 of 2011 stand vacated. The Learned Trial Court shall proceed with the suit, i.e. C.S.No. 316 of 2011 & shall make all efforts to dispose of the same by the end of March, 2013. Urgent certified copy of this order be granted as per rules.