GHANASHYAM BILLIA Vs. RITA BIBHAR

JUDGEMENT

(1.) This matter is taken up through hybrid mode.

(2.) Order dtd. 5/5/2023 (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.

(3.) Mr. Mahapatra, learned counsel for the Petitioner submits that the sole Plaintiff, namely, Desharam Bibhar died on 23/2/2013 and the petition for substitution was filed by his legal heirs on 30/1/2023. 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 21/6/2022. 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.