JAGABANDHU PARIDA Vs. SUKUTI PARIDA AND ANOTHER

JUDGEMENT

(1.) This civil miscellaneous petition involves a challenge to the order vide Annexure-3 passed by the learned Civil Judge (Senior Division) , Bhadrak in Civil Suit No.146/2014-I thereby allowing withdrawal of the suit at the instance of the plaintiff.

(2.) Short background involved in this case is that the petitioner claiming to be one of the legal heir of the defendant no.1 in the court below submitted that the defendant no.1 died on 27.6.2014 and during pendency of the application for substitution in respect of the defendant no.1 at the instance of the plaintiff, the application under Order 23 Rule 1 of C.P.C. was finalized. As the suit has already been abated, there was no scope for the trial court to entertain the application under Order 23 Rule 1 of C.P.C.

(3.) Referring to the pleadings in the plaint and the claim involved therein, Shri Dash, learned counsel for the petitioner submitted that the legal heirs of the defendant no.1 since are necessary and proper party, the suit should not have been permitted to be withdrawn in absence of substitution. Also referring to a decision of this Court, in the case of Sri Sri Shyam Ray alias Shyamsundar jew Thakur versus Haramani Dei (dead) and after her, Jinet Samal & others, (1983) 56 CutLT 503 learned counsel for the petitioner contended that for the ratio decided therein, the decision has direct application to the case of the petitioner. Similarly, referring to another decision in the case of Tirtha Bararty and 9 others versus Dingar Kanda and 7 others, 2017 2 OrissaLR 242 further submitted that in absence of substitution of the defendant no.1 in the case at hand following the principle laid down in the above reported case, the suit had already got abated leaving any scope for considering the application under Order 23 Rule 1 of C.P.C. It is under these premises, learned counsel for the petitioner submitted that the impugned order becomes bad and needs to be interfered with and set aside.