MAHESWAR BEHERA Vs. RADHASHYAM BEHERA

JUDGEMENT

(1.) This Writ Petition has been filed challenging the order dated 20 -1 -2004 passed by the Learned Civil Judge (JD), Jaleswar in Original Suit No. 917 of 1994 refusing to condone the petition delay and rejecting the petitions for setting aside abatement and substitution.

(2.) IT appears that the petitioner was the Plaintiff in the aforesaid Original Suit which was one for declaration of right, title and interest in respect of the disputed property. During pendency of the suit on 15th of February, 1999 the sole Defendant died leaving behind him his legal representatives. A Memo, was thereafter filed under Order 22, Rule 9 CPC by the Counsel for the said Defendant intimating the Court about the fact of death. But then no steps were taken by the Plaintiff -petitioner to substitute the deceased sole Defendant. As a consequence, by order dated 20 -9 -2000 the Court below observing that no steps had been taken for substitution of the deceased sole Defendant, dismissed the suit as abated. Thereafter a petition was filed by the petitioner for substitution, but the same was rejected.

(3.) MR . Baug, Learned Counsel for the petitioner, submitted that not entertaining the subsequent petition filed by the petitioner for substitution in place of the deceased sole Defendant ought not to have been dismissed or refused. Not entertaining the said petition amounted to taking a hyper technical view and the Court below ought to have been liberal in considering the said petition. This submission of Mr. Baug was advanced relying upon the decision of the Supreme Court in the case of K. Rudrappa v. Shivappa reported in : AIR2004SC4346 .