Jharkhand High Court
Sikendra Mahto vs Murlidhar Dangi on 28 July, 2025
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
[2025:JHHC:20736]
IN THE HIGH COURT OF JHARKHAND AT RANCHI
C.M.P. No. 500 of 2024
1. Sikendra Mahto, aged about 42 years Son of Late
Bhola Mahto, Resident of 18, Ward No. 6, Village
Sandh, P.O. Sandh, P.S. Barkagaon, District
Hazaribagh.
2. Mahendra Parsad Dangi, aged about 52 years,
Son of Late Dhenku Mahto, Ward No. 01, Village
Sandh, P.O. Sandh, P.S. Barkagaon, District
Hazaribag.
..... ... Petitioners
Versus
1. Murlidhar Dangi, Son of Late Niru Mahto,
Resident of Village Sandh, P.O. Sandh, P.S.
Barkagaon, District Hazaribag.
2. Manohar Prasad Dangi, Son of Late Niru Mahto,
Resident of Village Sandh, P.O. Sandh, P.S.
Barkagaon, District Hazaribag.
3. Bineshwar Prasad Dangi, Son of Late Niru
Mahto, Resident of Village Sandh, P.O. Sandh, P.S.
Barkagaon, District Hazaribag.
4. Jagdish Mahto, Son of Late Tulsi Mahto,
Resident of Village Sandh, P.O. Sandh, P.S.
Barkagaon, District Hazaribag.
5. Dhaneshwar Mahto, Son of Late Tulsi Mahto,
Resident of Village Sandh, P.O. Sandh, P.S.
Barkagaon, District Hazaribag.
6. Jugal Mahto, Son of Late Tulsi Mahto, Resident
of Village Sandh, P.O. Sandh, P.S. Barkagaon,
District Hazaribag.
7(A) Sarju Mahto, aged about 60 years., Son of
Late Basudeo Mahto, Resident of Village Sandh,
P.O. Sandh, P.S. Barkagaon, District Hazaribag.
-1-
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7(B) Khrodhar Mahto aged about 48 years., Son of
Late Basudeo Mahto, Resident of Village Sandh,
P.O. Sandh, P.S. Barkagaon, District Hazaribag.
7(C) Kaushalya Devi aged about 32 years.,
Daughter of Late Basudeo Mahto, Wife of Sikandar
Prasad, Resident of Village Sandh, P.O. Sandh, P.S.
Barkagaon, District Hazaribag.
8. Maheshwar Mahto, Son of Late Chandu Mahto,
Resident of Village Sandh, P.O. Sandh, P.S.
Barkagaon, District Hazaribag.
9. Mosomat Gulabi wife of Late Bhola Mahto
10. Chandrika Mahto son of Late Bhola Mahto
11. Rajendra Mahto, son of Late Dhenku Mahto
12. Ishwar Dayal Mahto, son of Late Rameshwar
Dayal Mahto
13. Kuleshwar Mahto, son of Late Rameshwar
Mahto
14. Gulbi Devi, wife of Late Rameshwar Mahto
15. Agni Devi, wife of Late Jhalo Mahto
16. Teklal Mahto, son of Late Jhalo Mahto
17. Deo Narayan Mahto son of Late Jhalo Mahto
18. Gali Devi wife of Late Sukhdeo Mahto
19. Maheshwar Mahto son of late Sukhdeo Mahto
20. Malo Devi daughter of Late Jhalo Mahto, wife
of Dashrath Mahto
21. Fulwa Devi, Daughter of Late Jhalo Mahto,
wife of Basant Mahto
22. Masomat Samundri Devi wife of late Amrit
Mahto (first wife)
23. Masomat Mila Devi, wife of Late Amrit Mahto
-2-
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(Second wife)
24. Bedaki Mahto, son of Late Amrit Mahto (from
first wife)
25. Lokesh Mahto, son of Late Amrit Mahto (Minor
Son from Second wife)
26. Pankaj Mahto @ Vinay Kumar, son of Late
Amrit Mahto (Minor Son from Second wife)
All resident of Village Sandh, P.O. Sandh, P.S.
Barkagaon, District Hazaribagh.
27. Sarita Devi Daughter of Late Amrit Mahto, wife
of Late Jai Kishor Mahto, resident of Chhotki Pona,
P.O & P.S Ramgarh, District Ramgarh.
28. Dilo Devi, Daughter of Late Amrit Mahto, wife
of Basant Mahto, Resident of Village Gondalpura,
P.O & P.S Barkagaon, District Hazaribagh.
29. Ato Devi, Daughter of Late Amrit Mahto, wife
of Sohan Mahto, Resident of Village Barkagaon,
P.O & P.S Barkagaon, District Hazaribagh.
30. Kewal Mahto
31. Makku Mahto
32. Juthan Mahto
All sons of Bilat Mahto, resident of Village &
P.O Sandh, P.S Barkagaon, District Hazaribagh.
All resident of Village Sandh, P.O.-Sandh, P.S
Barkagaon, District Hazaribagh.
..... ... Opposite Parties
--------
CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
------
For the Petitioners : Mr. Rajesh Kumar, Advocate.
: Mr. Amit Kumar, Advocate.
For the O.P. Nos. 1 to 6 & 8: Abhishek Kumar Dubey, Advocate.
For the O.P. Nos. 3 to 5 : Mr. Yuvraj Singh, Advocate
------
09/ 28.07.2025 Heard Mr. Rajesh Kumar, learned counsel appearing for the
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petitioners, Mr. Abhishek Kumar Dubey, learned counsel appearing for
the O.P. Nos. 1 to 6 and 8 and Mr. Yuvraj Singh, learned counsel
appearing for the O.P. Nos. 3 to 5.
2. It appears that notice upon O.P. Nos. 7(A) to 7(C) has
already been effected, however they have chosen not to appear in the
matter and earlier with a view to provide one more opportunity to them,
the matter was adjourned on 30.06.2025 and today also nobody has
responded on behalf of them in spite of repeated calls, in view of that
this petition is being heard in absence of O.P. Nos. 7(A) to 7(C).
3. This petition has been filed under Article 227 of the
Constitution of India, wherein prayer has been made for setting aside
the order dated 23.02.2024 passed by the learned District Judge-VII,
Hazaribagh, in Civil Appeal No. 09 of 2020 [Misc. Civil Application
Nos. 203 of 2022, 204 of 2022, 147 of 2023 and 426 of 2023], whereby,
the learned appellate court has been pleased to allow the application
filed by the opposite parties under Order-XXII Rule-3 read with Section
151 of CPC along with two limitation petitions under Section 5 of the
Limitation Act.
4. Mr. Rajesh Kumar, learned counsel appearing for the
petitioners submits that Sugan Mahto was the common ancestor of the
petitioner and the opposite parties, who acquired land in village Sandh
and in Village Haram Shivdih, P.S. Barkagaon, District Hazaribagh.
The said Sugan Mahto died before the survey settlement operation
leaving behind his five sons namely Parash Nath Mahto and Pritam
Mahto from first wife and Tanak Mahto, Puran Mahto and Punit Mahto
from the second wife and they jointly inherited the said land. He
submits that the Partition Suit No. 45 of 2001 was instituted for the
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partition of the land admeasuring total area of 46.67 acres, which was
decreed by the judgment dated 08.08.2011 and the decree dated
18.08.2011, passed by the learned Sub-Ordinate Judge, Hazaribagh.
Against the said judgment, the defendants/opposite parties have
preferred first appeal before the High Court, which was registered as
F.A No. 118 of 2011 against the original plaintiff Bhola Mahto and
others wherein after on the notice issued by the High Court, the
petitioners herein appeared in the said first appeal.
5. Learned counsel submits that in the meantime, the
pecuniary jurisdiction of the learned Civil Court has been changed, as
such, the said first appeal was transferred to the learned District Judge,
Hazaribagh, wherein the said appeal was re-numbered as Civil Appeal
No. 09 of 2020. He then submits that the original plaintiff Bhola Mahto
died on 08.04.2013, the original Plaintiff No. 3 Ramesher Mahto died
on 23.10.2013 and Respondent No. 4 Jhalo Mahto also died on
02.10.2013 and all the three original plaintiff/defendants were
substituted by their legal representatives by order dated 15.01.2014 and
notices were issued to the substituted respondents and on receipt of the
notice, the substituted legal representatives appeared and filed their
Vakalatnama. He submits that the plaintiffs filed a petition on
22.11.2022 stating inter alia that respondent No. 5(F) namely Dilo Devi
died on 04.03.2015 and the respondent No. 7 Mukhani Devi also died
on 24.05.2011.
6. He further submits that another petition was filed on
25.11.2022 for substitution of the legal heirs of the plaintiff Basudeo
Mahto, who happens to be the plaintiff No. 5, who died on 06.02.2022
and the said affidavit was filed after the delay of ten months. He
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submits that along with the aforementioned petitions, separately
limitation petitions under Section 5 of the Limitation Act have also
been filed for condoning the delay. However, the petitioner for setting
aside the abatement has not been filed. On these backgrounds, learned
counsel submits that the learned court has wrongly allowed the said
petitions without condoning the delay and further by way of not setting
aside the abatement. He submits that the said illegality has been done
by the learned court, in view of that the learned court has wrongly
passed the order. On these grounds, he submits that the impugned order
may kindly be set aside.
7. On the other hand, Mr. Abhishek Kumar Dubey, learned
counsel appearing for the O.P. Nos. 1 to 6 and 8 has opposed the prayer
and submits that the death was not known to the appellants/opposite
parties and when it was informed by way of filing a petition on
11.07.2023 by the petitioners herein and thereafter it has been
transpired and after that the said petition with regard to respondent No.
5F has been filed. He submits that so far as others are concerned, no
information was made by the petitioners, as disclosed at page-55 herein
and when it has been transpired, the other petition has been filed. He
submits that there is no illegality in the impugned order. On these
grounds, he submits that present petition may kindly be dismissed.
8. It is an admitted position that there is land dispute between
the co-sharers in a partition suit. The partition suit was decreed by the
judgment dated 08.08.2011, passed by the learned Sub-Ordinate Judge,
Hazaribagh, against that the first appeal, being F.A. No. 118 of 2011
was filed before the High Court, however, pursuant to change in the
pecuniary jurisdiction, the said first appeal was transferred to the
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learned court and thereafter the said appeal was renumbered as Civil
Appeal No. 09 of 2020, wherein the petitions have been filed for
substituting the names of legal heirs and successors of dead persons, as
noted hereinabove.
9. The contentions have been made by the learned counsel
appearing for the petitioners that the separate petitions for setting aside
the abatement and for condonation have not been filed.
10. The provision under Order-I Rule-10 CPC speaks about
judicial discretion of the court to strike or add parties at any stage of
suit and if strike out any party, who is improperly joined, it can add any
one as plaintiff or defendant, if it is found that such person is a
necessary and proper party. The court under Order-I Rule 10 CPC will
of course act according to reason and the fair play and not according to
whims and caprice.
11. It is an admitted position that belatedly the petition has been
filed for substituting the names of dead persons, which is noted
hereinabove. So far as respondent No. 5F is concerned, the information
was provided by the petitioner on 11.07.2023 and it has been contended
that so far others are concerned, they have already been substituted and
for the respondent No. 5F is concerned, the knowledge was not there, in
view of that the delay has occurred and further there are separate
limitation petition for condonation of delay.
12. It is well settled now that the different petitions are not
required to be filed for condoning the delay and for the substitution and
for setting aside the abatement, however, in one petition, that can be
prayed, that cannot be said to be illegality. The limitation petitioners are
already there and from the contents of the entire petition, the intention
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of setting aside the abatement is required to be looked into, as the
petition for substitution was filed, meaning thereby the intention of
setting aside the abatement was also there and for doing the justice, the
court is required to take care of the fact that any injustice cannot be
made to either of the parties.
13. It is well to remember that the Code of Civil Procedure is a
body of procedural law designed to facilitate justice and it should not
be treated as an enactment providing for punishments and penalties.
The laws of procedure should be so construed as to render justice
wherever reasonably possible. The reference may be made to the case
of Chinnammal & Ors. Versus P. Arumugham & Anr., reported in
(1990) 1 SCC 513.
14. The procedural aspect and substitution has been further
considered recently by the Hon'ble Supreme Court in the case of case
of Om Prakash Gupta @ Lalloowa (Now Deceased) & Ors. Versus
Satish Chandra (Now Deceased), reported in 2025 SCC OnLine SC
291, wherein the Hon'ble Supreme Court in paras-13 to 19 has held as
under:-
"13. Having regard to the facts noticed
above, this appeal would require us to
decide whether the heirs of Om Prakash
were required to file a separate application
for substitution when, admittedly, an
application for substitution (Civil Misc.
Substitution Application No. 211 of 1997)
had previously been filed by the heirs of
Satish Chandra. If the answer is in the
negative, the impugned orders and also the
order dated 2nd January 2007 (vide which
the second appeal was dismissed as abated)
will have to be set aside, since dismissal of
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a second appeal as abated despite
pendency of a valid substitution application
would be bad in law.
14. Order XXII of the Code of Civil
Procedure is titled DEATH, MARRIAGE
AND INSOLVENCY OF PARTIES. Rule 4
thereof lays down the procedure in case of
death of one of several defendants or of
sole defendant. It is clear on perusal of
such rule that it does not expressly provide
who between the parties to a civil suit is to
present an application for substitution.
15. In Union of India v. Ram Charan, this
Court held:
"10. It is not necessary to consider whether
the High Court applied its earlier Full
Bench decision correctly or not when we
are to decide the main question urged in
this appeal and that being the first
contention. Rules 3 and 4 of Order
22 CPC lay down respectively the
procedure to be followed in case of death of
one of several plaintiffs when the right to
sue does not survive to the surviving
plaintiffs alone or that of the sole plaintiff
when the right to sue survives or of the
death of one several defendants or of sole
defendant in similar circumstances. The
procedure requires an application for the
making of the legal representatives of the
deceased plaintiff or defendant a party to
the suit. It does not say who is to present
the application. Ordinarily it would be the
plaintiff as by the abatement of the suit the
defendant stand to gain. However, an
application is necessary to be made for the
purpose. If no such application is made
within the time allowed by law, the suit
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abates so far as the deceased plaintiff is
concerned or as against the deceased
defendant. The effect of such an abatement
on the suit of the surviving plaintiffs or the
suit against the surviving defendants
depends on other considerations as held by
this Court in State of Punjab v. Nathu
Ram [AIR 1962 SCR 89] and Jhandha
Singh v. Gurmukh Singh [CA No. 344 of
1956 decided on April 10, 1962]. Anyway,
that question does not arise in this case as
the sole respondent had died."
(emphasis supplied)
16. The law, laid down in Ram
Charan (supra), is clear. There seems to be
no legal requirement that on the death of a
defendant, an application for substitution in
all cases has to be made by the plaintiff
only and that, any application, made by the
heir(s)/legal representative(s) of the
deceased defendant seeking an order to
allow him/them step into the shoes of the
deceased defendant and to contest the suit,
cannot be considered. Once an application
has been made by either party and the court
has been informed about the death of a
party and who the heir(s)/legal
representative(s) he has left behind, the
only thing that remains for the court is to
pass an order substituting the heir(s)/legal
representative(s). Such being the case, we
have no doubt in holding that the
application moved by the heirs of Satish
Chandra (Civil Misc. Substitution
Application No. 211 of 1997), whereby the
court was informed by them of his death
and the heirs that he had left behind,
amounted to an application for substitution
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which was legally permissible and valid
and deserved consideration.
17. According to Mr. Basant, the
application filed by the heirs of Satish
Chandra was an application intimating the
death of Satish Chandra under Order XXII
Rule 10-A, CPC and it was not an
application under Rule 4 thereof; thus,
there being no valid and proper application
for substitution, the appeal was rightly held
to have abated.
18. We find no force in the argument
advanced by Mr. Basant. The application
filed by the heirs of Satish Chandra was
registered as a substitution application and
the prayer was also for deletion of the name
of Satish Chandra and substitution of his
three sons in his place. In view thereof and
having regard to the law laid down in Ram
Charan (supra), we hold that an
application having been filed by the heirs of
Satish Chandra, the heirs of Om Prakash
were not legally obliged to apply separately
for substitution.
19. In our opinion, the law not having
expressly mandated that an application for
substitution has to be filed by the
plaintiff/appellant upon receiving
intimation of death, requiring a formal
application from the plaintiff only will serve
no tangible purpose. A justice-oriented
approach has to be followed in interpreting
the provisions of the CPC is the well settled
law. Reference may usefully be made to the
decision in Chinnammal v. P. Arumugham,
where it was held:
"17. It is well to remember that the Code of
Civil Procedure is a body of procedural law
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designed to facilitate justice and it should
not be treated as an enactment providing
for punishments and penalties. The laws of
procedure should be so construed as to
render justice wherever reasonably
possible. It is in our opinion, not
unreasonable to demand restitution from a
person who has purchased the property in
court auction being aware of the pending
appeal against the decree."
(emphasis supplied)
15. In light of the above, the court finds that the learned court in
the interest of justice has rightly passed the order and allowed the
substitution petition. Further the lack of diligence and negligence can
be attributed to the appellant/opposite parties only when he is aware of
the death and fails to take steps to bring the legal heirs on record and it
has been pleaded in the case in hand that so far respondent No. 5F is
concerned, the information was provided by the petitioner on
11.07.2023 and thereafter the step was taken.
16. In light of the above discussions, the court finds that there is
no illegality in the impugned order. As such, this petition is dismissed.
(Sanjay Kumar Dwivedi, J.)
Amitesh/-
[A.F.R.]
