LAWS(ORI)-2017-7-156

SMT. BIJAYALAXMI PATTANAIK Vs. BISHNUPRIYA PATTNAIK & OTHERS

Decided On July 10, 2017
Smt. Bijayalaxmi Pattanaik Appellant
V/S
Bishnupriya Pattnaik And Others Respondents

JUDGEMENT

(1.) By this application under Article 227 of the Contitution of India, challenge is made to the order dated 10.2.2016 passed by the learned 2nd Addl. Civil Judge (Senior Division), Cuttack in T.S. No. 26 of 2000 whereby and where under learned trial court granted leave to substitute defendants 2,3,5 and 6 as against deceased defendant no. 1.

(2.) Petitioner as plaintiff instituted T.S. No. 26 of 2000 in the court of the learned 2nd Addl. Civil Judge (Senior Division), Cuttack for declaration of right, title and interest and permanent injunction impleading her mother and opposite parties 1 to 6 as defendants. Her mother was defendant no.1. Defendant no.1 filed the written statement-cum-counter claim for eviction. Defendants 2 to 6 were set ex parte. During pendency of the suit, defendant no.1 died leaving behind her two sons i.e. defendant nos. 2 and 3, daughters-defendant no.5, plaintiff and two other daughters, who were not parties to the suit. Be it noted that defendant no. 4 son of defendant no.1 died. The plaintiff filed an application to substitute two daughters of defendant no. 1 as defendant no. 1(a) and 1(b). The same was allowed. While the matter stood thus, defendants 2,3 and 5 filed an application purported to be under Order 22, Rule 1 CPC for substitution and to prosecute the lis. The plaintiff filed an objection. Learned trial court came to hold that legal representative including the person who are not the legal heir, but represent the estate of the deceased. The legal representative is to continue litigation as the cause of action sued upon and cannot set up a new or individual right. Held so, it allowed the application.

(3.) Heard Mr. Bibekananda Bhuyan, learned counsel for the petitioner and Mr. Ramakanta Mohanty, learned Senior Advocate along with Ms. Sumitra Mohanty, learned counsel for the opposite parties.