Prameshwer Mahto & Others vs The State Of Jharkhand Through ...
2022 Latest Caselaw 4424 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
                      C.M.P. No.112 of 2017
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Prameshwer Mahto & Others .... .... .... Petitioners Versus The State of Jharkhand through Deputy Commissioner, Koderma .... .... .... Opp. Party

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CORAM : HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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For the Petitioners : Mr. Atma Ram Choudhary, Advocate

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Order No.08 Dated- 04/11/2022 Heard the parties.

2. Learned counsel for the petitioners submits that this Civil Miscellaneous Petition has been filed with a prayer to condone the delay in filing the petition for substitution and to allow the name of late Prasadi Mahto be deleted from the cause-title of the memo of appeal and to get the name of the petitioners of the instant Civil Miscellaneous Petition substituted in his place. It is next submitted by the learned counsel for the petitioners that the appellant Prasadi Mahto died on 14.11.2012 leaving behind his only two legal representatives whose names, parentages and addresses have been mentioned in paragraph-5 of the instant Civil Miscellaneous Petition. It is then submitted that the petitioners being rustic villagers and quite ignorant of the law, could not file the petition for substituting themselves as party to the First Appeal No.701 of 2006 during the pendency of the appeal which was disposed of vide common judgment dated 13.09.2013 along with other appeals. It is then submitted that the petitioners approached the Land Acquisition Officer and they were told that the award has been prepared in the name of late Prasadi Mahto, therefore, they are required to get their name substituted in place of Prasadi Mahto. It is further submitted that a coordinate Bench of this Court has allowed several petitions for substitution after disposal of the appeal vide order dated 21.11.2014 passed in C.M.P. Nos.308 of 2014, 309 of 2014, 311 of 2014, 313 of 2014, 314 of 2014, 315 of 2014 and 316 of 2014.

3. Perusal of the record reveals that the legal representatives of late Prasadi Mahto has not intimated to this Court about the death of Prasadi Mahto during the pendency of the appeal. Order XXII Rule 4 (1) of the Code of Civil Procedure reads as under:-

"(1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit." (Emphasis supplied) The word "and shall proceed with the suit" which finds place in Order XXII Rule 4 (1) of the Code of Civil Procedure implies that the power under Order XXII Rule 4 can only be exercised when court is in session of the lis.

4. Perusal of the record further reveals that since the appeal has already been disposed of way back on 13.09.2013 finally so after that this Court has become functus officio so far as the said appeal is concerned. Hence, in this considered opinion of this Court the prayer for substitution of a party which was suppressed during the pendency of the appeal cannot be made after the appeal has been disposed of and this Court, thus, has become functus officio so far as the appeal is concerned.

5. Accordingly, the instant Civil Miscellaneous Petition, being without any merit, is dismissed.

Animesh/                                       (Anil Kumar Choudhary, J.)