STATE OF ORISSA Vs. PURNANANDA SAMAL

JUDGEMENT

(1.) - This is a plaintiff's appeal against the judgement and decree of the learned Subordinate Judge of Cuttack. The suit was instituted on 11-4-1970, the judgement was delivered on 18-12-1975 and the decree is dated 8-1-1976. The first appeal was presented in this Court on 19-3-1976. 8 respondents were found to be dead in this court though death in each case excepting one had occurred long before. The particulars are given below :- Serial Number of the Date of death. Date of knowledge Date of application Number respondent. of the appellant. for substitution. 1 2 3 4 5 1. R.48 23-8-1970 Feb. 1977 1-2-1978

(2.) R.30 4-5-1972 -do--do3. R.104 15-1-1973 -do--do4. R.21 4-5-1974 -do--do5. R.101 4-7-1974 -do--do6. R.33 25-1-1976 -do--do7. R.15 23-11-1976 -do--do- Apart from these deaths, respondent No.29 was dead on 1-6-1969, yet in the suit filed on 11-4-1970, he was impleaded as a defendant. 2. From the record of the first appeal, it appears that notices were taken out to these respondents along with others and in view of the report of the process server that these respondents were not found at the addresses given, fresh notices were directed to these respondents by order dated 14-1-1977. A memorandum was filed on behalf of the appellant on 27-1-1977 to the following effect :

(3.) In regard to respondent No.29 who died prior to the institution of the suit, learned Additional Government Advocate says that the legal representatives should be brought on record in exercise of powers under O.1, R.10 of C.P.C. Sub-rule (2) of that Rule provides :( "The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added." This provision does vest wide powers in the Court but the same has to be exercised in a prudent and judicious manner. It is the obligation of every litigant to make appropriate enquiries and obtain requisite information about the state of the defendants on the date the suit is filed. If a reasonable enquiry had been made prior to the institution of the suit, the information which has now been in possession of the appellant could have been obtained and a dead person could not have been added as a defendant. To add the legal representatives of respondent No.29 for the first time at this stage would certainly be prejudicial to the legal representatives. They would have no occasion for filing a written statement and they would be precluded from leading evidence in support of their possible stand in the litigation. To plant them into the lis at this stage would, therefore, be prejudicial to their interest. Impleading a dead man was an act of gross negligence and the conduct of the plaintiff cannot be lost sight of in dealing with the question. Again, to accept the submission of learned Additional Government Advocate that the suit could be remanded by vacating the decree and the legal representatives of respondent No.29 could be given adequate opportunity of participating in the contest would be conceding a premium in favour of negligence. Ordinarily award of costs relieve the affected party from the strain and stress of litigation. but a stage comes in every litigation where mere award of costs would not be a panacea to go the whole way. In our opinion, this seems to be a case where if for the utter negligence of the plaintiff-appellant, we vacate the decree of the trial court, it would amount to a wholly unwarranted treatment to the matter.