SUDHANSUMALA SAHU Vs. BINODINI PANDA

JUDGEMENT

(1.) HEARD learned counsel for the appellants. None appears for the respondents. This appeal has been filed against an order dated 25.01.2006 passed by the learned Civil Judge (Senior Division), Gunupur in T.S. No.40 of 2010 by which the learned Civil Judge rejected the petition filed under Order 22 Rule 3 C.P.C. by the legal heirs of the deceased plaintiff to add them as plaintiffs in the suit. Objection was raised by the defendants that the petition has not been filed within time. Finding that the petition has been filed at a belated stage, the learned Civil Judge (Senior Division), Gunupur rejected the prayer for adding them as plaintiffs. However, it appears that the defendants earlier preferred W.P.(C) No.11603 of 2003 against the order dated 21.10.2003 passed by the learned Civil Judge (Senior Division), Gunupur in the aforesaid suit and during pendency of the said writ petition, the sole plaintiff expired. His legal heirs filed an application to be impleaded as parties in the said writ petition and such prayer was allowed by impleading them as opposite party Nos.1 (a) and 1 (b) in the said writ petition. Similarly, in another case i.e., W.P.(C) No.11173 of 2003, which was also filed by the defendants, the prayer made by the legal heirs of the sole deceased plaintiff to be impleaded as parties was allowed by this Court by order dated 14.12.2004. These facts have not been taken into consideration by the learned Civil Judge (Senior Division), Gunupur in the impugned order. In the case of Panna Lal Agrawala v. Kanhaiya Lal Jain and others, AIR 1974 Patna 284, a question arose as to whether if the legal heirs are brought on record at one stage of the suit, it will enure to all subsequent stages of the suit, as an appeal or a revision is a continuation of the suit itself? The Patna High Court answered the said question in the affirmative, holding that if the substitution is made in the appeal or revision it will be deemed to have been made in the suit itself. But in the reverse or converse situations this legal position would not be correct, i.e. if any substitution is made in a suit when an appeal or revision is already pending in which no steps for substitution were taken, that could not be projected backwards into the appeal which had already been filed against an earlier order passed in the suit. The principle can be applied to an execution proceeding also if there is a substitution made in an appeal arising out of the execution proceeding.

(2.) THE writ petitions were filed against the orders passed in the suit rejecting an application for appointment of a Civil Court Commissioner and rejecting an application under Order 6 Rule 17 C.P.C. The said matters were brought before this Court by way of writ petitions, as civil revisions against those orders were not maintainable. Since the legal heirs of the sole deceased plaintiff were allowed to be substituted by this Court in the said writ petitions, the said substitution will enure to all subsequent stages of the suit and accordingly, it was for the trial Court to bring the legal heirs of the sole deceased plaintiff on record as plaintiffs as they have already been substituted in the writ petitions. In view of the above, the impugned order cannot be sustained and is accordingly set aside. The legal heirs of the sole deceased plaintiff, who were substituted as opposite party Nos.1 (a) and 1 (b) in the two writ petitions, shall be added as plaintiffs in the suit and the learned Civil Judge (Senior Division), Gunupur shall proceed to try the suit thereafter from the stage when the impugned order was passed.