STATE OF ORISSA Vs. GANDHARBA KUMBHER AND ORS.

JUDGEMENT

(1.) Heard Mr. P.K. Mohanty, the learned Addl. Standing Counsel appearing for defendant No. 1 - Petitioner and Mr. R.S. Misra, the learned counsel for the legal representatives of deceased plaintiff. In accordance with the notice and with consent of parties, the civil revision is finally heard and disposed of.

(2.) The suit for title and for perpetual injunction against all the defendants was decreed ex parte. To set aside the ex parte decree M.J.C. No. 41 of 1983 was filed by the petitioner. During pendency of the application after appearance in the proceeding, the sole plaintiff expired on 13.4.1985. No stop was taken for substituting the legal representatives till 5.9.1985 when an application for substitution was filed. On 27.9.1985, an application was filed for condonation of delay but no application was filed for setting aside Statement. On 18.2.1986, an application for setting aside abatement was filed. Since the applications for setting aside the abatement and condonation of delay did not disclose good and sufficient causes the application for substitution was rejected against which civil revision has been filed.

(3.) On perusal of the record, find that the Associate Government Pleader has filed the application for substitution on 5.9.1 without indicating the date of death in tit petition. On 27.9.1985 to which date the matter was fixed for filing objection, an application was filed for condonation of delay. Or 18.2.1986, an application for setting aside abatement has been filed. No intimation has been given by the learned counsel appearing for the sole opposite party about the death provided in Order 22, Rule 10A, C.P.C. It this background, petitioner has explained the delay by stating that the Tahsildar, Balangir could not complete the enquiry for ascertaining the legal representatives of the deceased. The delay was stated also to be on account the fact that the Tahasildar was engaged if collection of revenue and distribution money to persons whose lands were sandcast. Trial court has not disbelieved these group for delay but held that the Tehsildar is an ordinary layman and is fully aware of the provisions of law and he should have completed his enquiry well before the expiry of the period of limitation. Collection of revenue and distribution of sandcast money which were also causes for delay in completion of the enquiry was held by the trial court to routine work of the Tahsildar and accordingly, were not sufficient causes. It was observed that the opposite party should not suffer for negligence of the officers of Government.