RADHA KRISHNA BEHERA Vs. GIRLGOBARDHAN PANDA

JUDGEMENT

(1.) The petitioners being the plaintiffs in T.S. No. 43/9 of 19/7-80 filed this application challenging the order dated 01.03.1990 passed by the learned Subordinate Judge. Kuchinda holding that the application filed under Order 22, Rule 4, CPC by the advocate for the plaintiff to substitute Sarojini Acharya In place of defendant No. 2, Alekha Acharya cannot be treated as a petition filed by the plaintiff and as such it is to be construed that no application for substitution of L.Rs. was made by the plaintiffs within the prescribed period and that as no application was made within time for substitution of L.Rs. the suit abated as a whole against the defendants. They have also assailed the said judgment dated 18.09.2001 in Annexure-2 passed by the learned District Judge, Sambalpur in Civil Revision No. 64 of 1993 setting aside the order dated 30.03,1993 in Misc. Case No. 3 of 1992 passed by the learned Sub-Judge, Kuchinda allowing substitution setting aside abatement holding that the same cannot be sustained in view of the principle of res judicata and refusal to condone the delay.

(2.) The short fact involved in the case in hand is that opposite party No. 4 (defendant No, 4) Narsingha Charan Behera sold the suit land to opposite party No, 1 (defendant No. 1) GIrlgobardhan Panda showing the present plaintiffs as minors on 29.05.1976. But physically the possession has not been delivered. Defendant No. 1 sold the property to defendant No. 2-Alekha Acharya on 26.05.1977. The plaintiffs filed the suit bearing No. T.S. No. 43/9 of 1977-80 against the defendants on 22.08.1977 before the learned Sub-ordinate Judge, Kuchinda seeking for a declaration of right, title and interest over the suit property. The plaintiffs claim that they and defendant No. 5 were the sons and daughters of defendant No. 4 through his first wife, namely, Maithill, who acquired the suit land measuring Ac. 0.94 decimals by a sale deed from Lal Udaya Chandar Dev of Deogarh on 26.01.1953 for a consideration of Rs. 1,000/-and accordingly, she possessed the same in her exclusive right, title and interest By virtue of her possession for more than 12 years, she also acquired title by adverse possession against the deceased defendants No. 2. The suit was set ex parte as against defendant No. 2 on 05.02.1961 thereby an ex parte decree was passed on 13.02.1931. Subsequently, Misc. Case No. 23/1981 was filed to restore the suit which was dismissed for default on 16.04.1982. Then Misc. Case No. 21/4 of 1984 was filed on 09.01.1984 to restore the above Misc. case which was also refused. However, a Revision case was fried against the order passed in Misc. Case No. 21/4 of 1982 and this Court set aside the order dated 09.01.1984. During pendency of the said Misc. Case No. 23/1981, defendant No. 2-Alekh Acharya died on 06.04.1988 and defendant No. 2 was substituted by his wife Sarojini Acharya by her own application on 05.08 1988. However. by order dated 21.09.1989 the suit was restored to file subject to payment of Rs. 200/-. The cost was paid as directed on 20.10.89. Then a petition under Order 22, Rule 4 CPC was filed on 18.01.90 to change the cause title as it reflected the name of the deceased defendant No. 2 and objection was also filed by defendant Nos. 2 and 3 to the said application But, fact remains that on the basis of the application filed by the wife of the deceased defendant, namely. Sarojini Acharya has already been substituted in Misc. Case No. 23/1982. However, another application was filed under Order 22, Rule 4 CPC for substitution of defendant No. 2 and an application under Order 22. Rule 3 CPC was filed by defendant Nos. 2 and 3 praying to pass orders for abatement of the suit. Both the applications were heard together and learned Sub-ordinate Judge, Kuchinds passed order on 01.03.1990 under Annexure-1 stating that the application under Order 22, Rule 4 should have been filed by the plaintiffs but it was found that advocate has filed the application without verification. Therefore, according to law. the petition dated 18.01.1990 cannot be treated as a petition praying for substitution. On the 'other hand, it was the plaintiffs or his authorized agent to file such, petition but none of the plaintiffs have filed the petition praying for substitution and the advocate has simply filed a petition that Sarojini Acharya be substituted in place of Defendant Nos. 2-Alekha Acharya. Therefore, the petition filed by the advocate cannot be treated to be a petition filed by the plaintiffs. Consequent thereof the petition dated 18.01.1990 having not been treated as petition praying for substitution of LRs. of defendant No. 2, the Court construed that no application for substitution was made by the plaintiffs within the prescribed period. As per the plaint all the defendants are joint tort-fessors and as no application was made within time for substitution of L.Rs., the suit stands abated in whole against the defendants.

(3.) Mr. K. Pattnaik, learned counsel for the petitioners submits that once the learned Court below after considering the materials available on-record set aside the abatement by condoning the delay and restored the suit to file on 30.07.1993 which was subsequently decreed on 22.12.1993, without considering the same the impugned order dated 18.09 2001 passed by the learned District Judge, Sambalpur setting aside the order dated 30.07.1993 is misconceived one. He further submitted that while entertaining the civil revision if the learned District Judge did not pass any interim order with regard to stay of the further proceeding of the suit and finally the suit was proceed with and the judgment was passed decreeing the suit on 22.12.1993 by passing an order dated 18.09.2001 setting aside the order dated 30.07.1993 of the Sub-Judge in Misc. Case No. 3 of 1992, the learned District Judge, Sambalpur has committed gross error which is apparent on the face of the record Therefore, the plaintiffs seek to set aside the order dated 01.03.1990 by which he refused the substitution as the same had not been filed by the plaintiffs and declared the suit as abated against the defendants and which the substitution was allowed end the suit was restored vide Order dated 30.07.1993 in Misc. Case No. 3/1992 and the order passed in Civil Revision No. 64/1993 dated 18.09.2001 under Annexure-2 setting aside the order dated 30.07.1993 is bad in law. To substantiate his contentions the learned counsel for the petitioner has relied upon the case of Hema Dibya v. Amarendra Kishore Das and others, 1966 AIR(Ori) 55, Mithatlal Dalsangar Singh and others v. Annabal Devram KIni and others, 2003 10 SCC 691 and Ganeshprasad Badrinarayan Lahoti (D) by L.Rs. v. Sanjeev prasad Jamna prasad Chourasiya and another, 2004 7 SCC 482.