CRP No.39 of 2009. Case: Arati Barik W/o- Siba Prasad Barik Vs Harish Chandra Barik And others. High Court of Orissa (India)
| Case Number | CRP No.39 of 2009 |
| Counsel | For Appellant: M/s. N.C. Pati, A.K.Das, N. Singh, M.R.Dash & B. Das. and For Respondent: M/s. N.P. Parija, D.K.Mohapatra, S.K.Rout, A.K.Mohanty & B.D.Panda, Advs. |
| Judges | B. N. Mahapatra, J. |
| Issue | Civil Proceudre Code - Section 115(1), Order 22 Rule 9 |
| Judgement Date | January 19, 2012 |
| Court | High Court of Orissa (India) |
Judgment:
B.N.Mahapatra, J.
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This Civil Revision petition has been filed by the petitioner (defendant no.3 in trial court) with a prayer to set aside the order dated 06.10.2009 passed by the Civil Judge (Sr. Division) Kendrapara in C.S.No. 317 of 2005 on the ground that the said order has been passed illegally.
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Revision petitioner''s case in a nutshell is that opposite party no.1 as plaintiff filed Civil Suit No. 317 of 2005 in the court of Civil Judge (Sr. Division), Kendrapara for permanent injunction restraining the defendants from executing the registered sale deed in favour of any outsider/stranger in respect of any portion of the suit land and cutting and removing any tree and demolishing the joint residential house along with further prayer for his preferential right to purchase the share of defendants. The plaintiff and defendant no.1 are two sons of late Khatu Barik and defendant no.2 is the widow of said Khatu Barik. According to the plaintiff, the suit land is the joint family home stead and there has been no partition by metes and bounds amongst the parties. Defendant nos. 1 and 2 sold their share in the suit land to defendant no.3, who is a stranger, by two registered sale deeds dated 27.08.2005.
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Defendant no.3''s case before the trial court is that the suit is barred for non-joinder of parties and there is no cause of action. There was partition by metes and bounds amongst the parties and for legal necessity the defendants 1 and 2 have sold their share in the land to defendant no.3, and therefore, the suit is not maintainable. During pendency of the suit defendant no.2 died and plaintiff filed a petition to delete her name as she had no other legal heir and accordingly, defendant no.2 was deleted by order dated 1.9.2008. The suit was taken up for hearing and in course of evidence the plaintiff was examined and in his statement he stated that his father died in the year 1993 and he had not made the three daughters (of late Khatu Barik) as parties to the suit. At that stage, defendant no.3 filed an application on 25.08.2009 to abate the suit for nonsubstitution of the daughters of late Khatu Barik and Urmila Barik (defendant no.2) to which the plaintiff filed objection. On 6.10.2009 the trial court rejected the said application dated 25.8.2009 of defendant no.3 on the ground that defendants did not object to the petition of the plaintiff for deleting the name of defendant no.2 and considering the said petition of the plaintiff on 1.9.2008 the court allowed the prayer for deletion of the name of defendant no.2. It is only when the case was posted for hearing, the defendant filed a petition for abatement. The further reason assigned by the trial court is that defendant no.3 could raise the issue of non-joinder of necessary party at the time of argument. Hence, the present revision petition.
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Mr. N.C. Pati, learned counsel appearing for the Revisionpetitioner submitted that the impugned order is against the law and weight of evidence on record. Non-joinder of parties and nonsubstitution of the legal representatives of a deceased-party are two separate aspects, which are to be dealt with under Order 1, Rule 9 and Order 22, CPC respectively. The question of non-joinder of necessary party, no doubt, can be decided as one of the issues at the final stage of hearing of the suit. Where as, non-substitution of the legal heirs of the deceased-party and question of abatement can be dealt with at any time after the death of the deceased...
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