BRAHMANANDA MAJHI Vs. GOPAL PRADHAN AND ORS.

JUDGEMENT

(1.) PLAINTIFF instituted Title Suit No. 164 of 1968 in the Court of the Munsif, Bargarh and obtained an ex parte decree on 9 -11 -1970. An application was made under' Order 9, Rule 13 of the Code of Civil Procedure which was registered as Misc. Case No. 11 of 1970. The restoration proceeding was at the instance of Defendants 1 to 4, 8' and 9. During the pendency of the proceeding, Defendant No. 1 died and the remaining Defendants who were applicants for restoration of the suit moved the trial Court for expunging the name of Defendant No. 1 stating that all his legal re -presentives were already on record, and therefore no substitution was necessary. Plaintiff disputed the position and claimed that Karna -Defendant No. 1 had left behind two daughters, Mukhi and Dukhi who were legal representatives of Defendant No. 1 and were alive; and should, therefore, be brought on record. The learned Munsif called upon the Defendants to bring the two daughters on record. By order dated 9 -8 -1972, the learned Munsif directed that as Defendants did not impleaded the two daughters of the deceased -Defendant No. 1 notwithstanding the direction of the Court the restoration proceeding abated as a whole and dismissed the application. Aggrieved by the order of the learned Munsif, the petitioning Defendants moved the learned Subordinate Judge in appeal.

(2.) THERE is no dispute that Karna left behind two daughters -who were heirs and legal representatives of his and they were not on record. When Defendants Petitioners in the restoration proceeding moved for expunging the name of Defendant No. 1, objection was raised before the trial Court that two of the legal representatives had been left out and the proceeding would be bad without them on record. The learned trial Judge gave a direction to bring them on record, Defendants failed to take steps as directed. On these facts would the doctrine of substantial representation apply is the question in issue.

(3.) COUNSEL for opposite parties has contended on the authority of a decision of the Supreme Court reported in Dolai Maliko v. Krushna Chandra Patnaik : 33 (1967) C.L.T. 1, that as all the sons of the deceased Defendant No. 1 are already on record, it should be held that these heirs represented the entire estate including the interests of the heirs not brought on record and there is no abatement. In the reported decision, some previous cases of the Court itself were taken into account and the legal position was placed thus: