HEMA DIBYA Vs. AMARENDRA KISHORE DAS

JUDGEMENT

(1.) T. S. No. 206/57 in the Court of Munsif, Kendrapara was dismissed for default on 19-9-60. Mic. Case No. 178/60 filed to set aside the above order of dismissal was dismissed on 26-4-61. M. A. No. 81/61 in the Court of District Judge, Cuttack was filed against the order dated 25-4-61. During the pendency of this appeal, the sole plaintiff, Nanda Kishore Das died on 13-12-62 leaving behind his widow sitamani Dei and son Amarendra Kishore Das as legal representatives. An application for substitution was filed in lime. It was allowed and substitution was made. The Misc. appeal was ultimately allowed on 1-2-64 and the learned District judge directed that T. S. No. 206/57 be restored to file of the Munsif, Kendrapara. On 21-4-64, the records of the lower Court reached the Munsif and he passed the following order: "as per Order passed in Misc. Appeal No. 81 of 1961 the suit is restored to its original file. Call on 18-5-1964 for hearing. " The case was adjourned from date to date and was fixed to 22. 9. 64 for hearing. Just a day before i. e. on 21-9-1964, the substituted plaintiffs filed an application that though they had already been substituted in the Misc. Appeal, there was no correction of cause title in the plaint and that in place of the deceased plaintiff the name of the Substituted plaintiff should be mentioned and the plaint be accordingly amended. A copy of this application was served on the defendant. Without hearing the application on the date fixed, the application was heard on 21-9-64. The learned Munsif passed the following order:

(2.) MR. Panigrahi raised two contentions (1) the substitution made in Misc. Appeal does not amount to substitution in the suit and that there being no substitution in the suit itself in time, the learned trial Court should have held that the suit had abated, (2) that at any rate the order dated 21-9-64 should not have been passed by the learned Munsif without giving opportunity to the defendants to file their objection and without the matter being heard in their presence.

(3.) THE second argument has considerable force. The matter ought not to have been heard on 21-9-1964 by the learned trial court. The defendant-petitioner has filed an affidavit that she had no notice that the application would be heard on 219-G4 and that in fact she was not heard. The learned Munsif, Sri B. K. Patnaik who passed the order on 21-9-64, was given a copy of the revision application for furnishing an explanation. He states that both the parties were heard on that date. The order sheet D/- 22-9-64 does not support his statement. Plaintiffs have not filed a counter affidavit that in fact the defendants were heard by the learned munsif on 21-9-64. The probabilities are against the statement made by the munsif in his explanation. The case had not been fixed for 21-9-64. There was no justification for him to go out of his way to hear both parties on that date without giving notice. The usual order passed in such case is to put up the application on the date fixed. On the aforesaid reasons, I am inclined to accept the petitioner's case that she was not present on 21-9-64 and the order was passed in her absence. The outlook of the learned Munsif in conducting judicial proceedings in such highly irregular manner reflects no credit on him.