JANARDAN MOHAPATRA Vs. BRAJABANDHU MOHAPATRA

JUDGEMENT

(1.) THE petitioners, who are plaintiffs in T.S. No. 213 of 1998, have filed this writ application seeking to challenge the order dated 2.11.2006 passed by the Civil Judge (Jr. Divn.), Puri in the said suit whereby three petitions filed by the petitioners on 20.4.2005; one under Order 22, Rule -4 read with Section 151 C.P.C., another for setting aside abatement and the third one under Section 5 of the Limitation Act read with Section 151 CPC for condonation of delay in taking steps for substitution, were rejected.

(2.) FROM the pleadings, it is apparent that the petitioners have filed T.S. No. 213 of 1998 before the learned Civil Judge (Jr. Divn.), Puri praying, inter alia, for declaration of right, title and interest in respect of the suit schedule properties. It appears that Defendant No. 1 -Chintamani Mohapatra died on 25.9.99 after his appearance in the suit. The plaintiff -petitioners had filed a petition under Order 1, Rule -10 CPC for impleading the legal heirs of the deceased -Defendant No. 1 and that application came to be rejected by the Civil Judge by his order dated 16.9.2004, on the ground that since the Civil Procedure Code under Order 22 provides for the steps to be taken when a party dies during the pendency of the suit and since a specific provision is available in the C.P.C., the application under Order 1, Rule -10 was held to be not maintainable and hence dismissed. After dismissal of the aforesaid application, the petitioners have filed three applications on 20.4.2005 details of which are noted hereinabove and those applications having come to be rejected by the order dated 2.11.2006, the said order is the subject matter of challenge in the present writ application.

(3.) LEARNED Counsel for the Opp.parties (defendants before the trial Court), on the other hand, strenuously argued that the factum of death of Defendant No. 1 on 25.9.1999 had been indicated by the defendants in paragraph -6 of their written statement filed on 12.10.1999. He further submitted that once the fact of demise of Defendant No. 1 on 25.9.1999 was brought to the notice of the plaintiffs, as well as, the Court by way of averments contained in the written statement filed on 12.10.1999, the plaintiffs having not acted immediately or within the reasonable time thereafter, does not justify any challenge to the order of the civil Court dated 2.11.2006.