SUPRAVA PRADHAN Vs. LABANYAMAYEE SAHU

JUDGEMENT

(1.) This petition challenges the order dated 18.09.2018, passed by the learned Civil Judge (Junior Division), Berhampur in C.S. No.58 of 2014, whereby and whereunder, learned trial court has rejected the applications of the plaintiffs under Order 6 Rule 17 CPC and under Order 1 Rule 10 CPC for impleadment of legal representatives of the deceased defendant no.1.

(2.) The dispute lies in a narrow compass. The facts need not be recounted in detail. Suffice it to say that plaintiffs-petitioners instituted the suit for declaration of title and permanent injunction. Defendant nos.2 and 3 entered contest. They filed their separate written statements. While matter stood thus, the plaintiffs filed two applications; one under Order 6 Rule 17 CPC and another under Order 1 Rule 10 CPC to delete the defendant no.1 from the cause title of the plaint and implead her legal representatives. It is stated that the defendant no.2 has filed written statement stating that defendant no.1 died on 19.06.2003. The suit was filed on 05.04.2014. Husband of defendant no.1 died three years back. Her son is a necessary party to the suit. Defendant no.2 registered the petition stating that suit is not maintainable, since the same is filed against a dead person. The petition has been filed to protract the litigation. Learned trial court held that after lapse of fifteen years, the plaintiffs have filed the petition. No application for condonation of delay has been filed. The suit has abated against defendant no.1. Plaintiffs have not filed any application for setting aside of abatement. Plaintiffs cannot substitute the legal representatives of deceased defendant no.1 in the guise of an amendment petition and petition under Order 1 Rule 10 CPC.

(3.) Mr.N.K.Sahu, learned Advocate for the petitioners submitted that plaintiffs were not aware of the death of defendant no.1. Defendant no.2 has filed written statement stating that defendant no.1 died on 19.06.2003. Thereafter the application for impleadment was filed. The plaintiffs prosecuted the lis diligently and bonafide. Order 22 CPC does not apply to the case, since defendant no.1 died much prior to institution of the suit. To buttress his submission, he placed reliance on the decision of the apex Court in the case of Pankajbhai Rameshbhai Zalavadia Vrs. Jethabhai Kalabhai Zalavadiya (Deceased) through Lrs. And others, 2018 AIR(SC) 490.