Jharkhand High Court
Debashis Mandal vs Sushanta Mandal on 8 July, 2025
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
2025:JHHC:18266
IN THE HIGH COURT OF JHARKHAND AT RANCHI
C.M.P. No. 702 of 2023
1. Debashis Mandal, aged 42 years, son of late Bibhuti Bhusan
Mandal, resident of village Kharband, P.O. Amlatola, P.S. Kowali,
District East Singhbhum.
2. Somnath Mandal, aged 57 years, son of late Bibhuti Bhusan
Mandal, resident of village Kharband, P.O. Amlatola, P.S. Kowali,
District East Singhbhum.
3. Nitish Chandra Mandal, aged 55 years, son of late Bibhuti Bhusan
Mandal, resident of village Kharband, P.O. Amlatola, P.S. Kowali,
District East Singhbhum.
4. Banamali Mandal, aged 47 years, son of late Bibhuti Bhusan
Mandal, resident of village Kharband, P.O. Amlatola, P.S. Kowali,
District East Singhbhum.
5. Pritish Kumar Mandal, aged 32 years, son of late Bibhuti Bhusan
Mandal, resident of village Kharband, P.O. Amlatola,
P.S.Kowali,District East Singhbhum.
6. Jhantu Mandal, aged 36 years, son of late Bibhuti Bhusan Mandal,
resident of village Kharband, P.O. Amlatola, P.S. Kowali,District East
Singhbhum.
7. Manoj Mandal, aged 46 years, son of late Ambujakha Mandal,
resident of village Kharband, P.O. Amlatola, P.S. Kowali, District
East Singhbhum.
8. Malay Mandal, aged 38 years, son of late Ambujakha Mandal,
resident of village Kharband, P.O. Amlatola, P.S. Kowali, District
East Singhbhum.
9. Madan Gopal Mandal, aged 49 years, son of late Ashutosh Mandal,
resident of village Kharband, P.O. Amlatola, P.S. Kowali, District
East Singhbhum.
10. Pranay Mandal, aged 36 years, son of late Ashutosh Mandal,
resident of village Kharband, P.O. Amlatola, P.S. Kowali, District
East Singhbhum. ... Petitioners
-Versus-
1. Sushanta Mandal, son of late Sripati Mandal, resident of village
Kharband, P.O. Amlatola, P.S. Kowali, District East Singhbhum.
2. Subodh Kumar Mandal, son of late Sripati Mandal resident of village
Kharband, P.O. Amlatola, P.S. Kowali, District East Singhbhum.
3. Dhirobala Mandal, daughter of late Sripati Mandal and wife of
Dharbanga Mandal, resident of village Putlupung, P.O. Chakri, P.S.
Kowali, District East Singhbhum.
4. Sadhana Mandal, daughter of late Sripati Mandal and wife of Hemanta
Mandal, resident of village Jamda, P.O. Bara Deuli, P.S. Kowali, District
East Singhbhum.
5. Munu Rani Mandal, daughter of late Sripati Mandal and wife of Sri
Dilip Kumar Mandal, resident of village Rasunchopa, P.O. Rasunchopa,
P.S. Kowali, District East Singhbhum.
6. Samerendra Nath Mandal, son of late Biswanath Mandal, resident of
village Kharband, P.O. Amlatola, P.S. Kowali, District East Singhbhum.
7. Shailesh Kumar Mandal, son of late Biswanath Mandal, resident of
village Kharband, P.O. Amlatola, P.S. Kowali, District East Singhbhum.
8. Chandan Kumar Mandal, son of late Biswanath Mandal, resident of
village Kharband, P.O. Amlatola, P.S. Kowali, District East Singhbhum.
9. Renuka Rani Mandal, daughter of late of late Biswanath Mandal and
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wife of Bibhuti Mandal, resident of village Sarmanda, P.O. Juri, P.S.
Kowali, District East Singhbhum.
10. Arati Rani Mandal, daughter of late Biswanath Mandal and wife of late
Navadeep Mandal, resident of village Pandrasuli, P.O. Narda, P.S.
Kowali, District East Singhbhum.
11. Kalpana Mandal, daughter of late Biswanath Mandal and wife of
Deepak Mandal, resident of village Narayanpur, P.O. Bhalki, P.S.
Kowali, District East Singhbhum.
12. Bharati Rani Mandal, daughter of late Nirod Boran Mandal and wife of
late Sughir Mandal, resident of village Majgram, P.O. Bhalki, P.S.
Kowali, District East Singhbhum.
13. Basumati Mandal, daughter of late Nirod Boran Mandal, and wife of
Abhimanyu Mandal, resident of village Pandrasuli, P.O. Narda, P.S.
Kowali, District East Singhbhum.
14. Sumati Rani Mandal, daughter of late Nirod Boran Mandal and wife of
Ashok Mandal, resident of village Pandrasuli, P.O. Narda, P.S. Kowali,
District East Singhbhum.
15. Chhaya Rani Mandal, wife of late Horogobinda Mandal, resident of
village Kharband, P.O. Amlotola, P.S. Kowali, District East Singhbhum.
16. Chandra Kanta Mandal, son of late Horogbinda Mandal, a minor
represented through his mother and guardian Chhaya Rani Mandal,
resident of village Kharband, P.O. Amlatola, P.S. Kowali, District East
Singhbhum.
17. Moni Mandal, daugher of late Horogbinda Mandal, a minor
represented thorugh her mother and guardian Chhaya Rani Mandal,
resident of village Kharband, P.O. Amlatola P.S. Kowali, District East
Singhbhum.
18. Kamal Lochan Mandal, son of late Nirod Boran Mandal, resident of
village Kharband, P.O. Amlatola, P.S. Kowali, District East Singhbhum.
19. Shephali Mandal, wife of late Santosh Kumar Mandal, resident of
village Kharband, P.O. Amlatola, P.S. Kowali, District East Singhbhum.
20. Paresh Chandra Mandal, son of late Santosh Kumar Mandal, resident
of village Kharband, P.O. Amlatola, P.S. Kowali, District East
Singhbhum
21. Kalyan Mandal, son of late Santosh Kumar Mandal, resident of village
Kharband, P.O. Amlatola, P.S. Kowali, District East Singhbhum.
22. Noren Chadra Mandal, son of late Ishan Chandra Mandal, resident of
village Haldipukhar, P.O. Haldipukhar, P.S. Kowali, District East
Singhbhum.
23. Shakti Pada Mandal, son of late Ishan Chandra Mandal, resident of
village Haldipukhar, P.O. Haldipukhar, P.S. Kowali, District East
Singhbhum.
24. Shyama Pada Mandal, son of late Ishan Chandra Mandal, resident of
village Haldipukhar, P.O. Haldipukhar, P.S. Kowali, District East
Singhbhum.
25. Narain Mandal, son of late Purna Chandra Mandal, resident of village
Haldipukhar, P.O. Haldipukhar, P.S. Kowali, District East Singhbhum.
26. Chandi Mandal, son of late Purna Chandra Mandal, resident of village
Haldipukhar, P.O. Haldipukhar, P.S. Kowali, District East Singhbhum.
27. Santosh Mandal,son of late Purna Chandra Mandal, resident of village
Haldipukhar, P.O. Haldipukhar, P.S. Kowali, District East Singhbhum.
28. Pochu Mandal, son of late Ashok Mandal, resident of village
Haldipukhar, P.O. Haldipukhar, P.S. Kowali, District East Singhbhum.
29. Nandu Mandal, son of late Ashok Mandal, resident of village
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Haldipukhar, P.O. Haldipukhar, P.S. Kowali, District East Singhbhum.
30. Shakuntala Mandal (Deleted)
31. Rabindra Nath Mandal, son of late Shantiram Mandal, resident of
village Kharband, P.O. Amlatola, P.S. Kowali, District East Singhbhum.
32. Anju Rani Mandal, daughter of Shantiram Mandal and wife of
Ambujaksha Mandal, resident of village Bara-Bhumri, P.O. Juri, P.S.
Potka, District East Singhbhum.
33. Gauri Rani Mandal, daughter of late Shantiram Mandal and wife of late
Sanjeev Mandal, resident of village Bara-Bhumri,P.O. Juri, P.S. Potka,
District East Singhbhum.
34. Suniti Mandal, daughter of late Shantiram Mandal and wife of Jagadish
Mandal, resident of village Sangram, P.O. Sangram, P.S. Potka, District
East Singhbhum.
35. Uttam Kumar Mandal, son of late Jagdish Mandal, resident of village
Kharband, P.O. Amlatola, P.S. Kowali, District East Singhbhum.
36. Kaushik Kumar Mandal son of late Jagdish Mandal, resident of village
Kharband P.O. Amlatola P.S Kowali District East Singhbhum.
37. Tapati Rani Mandal, wife of Narayan Mandal, (who is daughter of late
Jagdish Chandra Mandal), resident of village Bhelidih, P.O. Bara Deuli,
P.S. Kowali, District East Singhbhum.
38. Bulbul Mandal, wife of late Kanchan Mandal, (who is son of late
Jagdish Mandal), resident of village Kharband, P.O. Amlatola, P.S.
Kowali ,District East Singhbhum.
39. Purnima Mandal, daughter of late Kanchan Mandal, (who is son of late
Jagdish Mandal) and wife of Biplav Mandal, , resident of village Potka,
P.O. Potka, P.S.Potka, District East Singhbhum.
40. Sanjay Mandal, son of late Kanchan Mandal (Who is son of late
Jagdish Mandal) resident of village Kharband, P.O. Amalotala, P.S.
Kowali, District East Singhbhum.
41. Hemanto Kumar Mandal, son of late Satish Chandra Mandal,
resident of village Kharband, P.O. Amalotola, P.S Kowali, District East
Singhbhum.
42. Subash Chandra Mandal, son of late Satish Chandra Mandal, resident
of village Kharband ,P.O.Amlatola, P.S.Kowali, District East
Singhbhum.
43. Kumud Ranjan Mandal, son of late Jyotindra Nath Mandal, (who was
son of late Abanikanta Mandal), resident of village Kharband, P.O.
Amalotala, P.S.Kowali, District East Singhbhum.
44. Binaykrishna Mandal, Son of late Joytindra Nath Mandal, (who was
son of late Abanikanta Mandal), resident of village Kharband, P.O.
Amlatola, P.S. Kowali, District East Singhbhum.
45. Dolly Rani Mandal, daughter of late Joytindra Nath Mandal, (who was
son of late Abani Kanta Mandal) wife of Harapati Mandal, resident of
village Bara Bhumri, P.O. Juri, P.S. Potka, District East Singhbhum.
46(i). Ruma Rani Mandal, wife of Sorojendu Kumar Manal, by faith Hindu,
resident of village Kharband, P.O. Amlatola, P.S. Kowali, District East
Singhbhum.
46(ii). Anupam Mandal, son of of Sorojendu Kumar Manal, by faith Hindu,
resident of village Kharband, P.O. Amlatola, P.S. Kowali, District East
Singhbhum.
47. Hiramoni Mandal, daughter of late Abani Kanta Mandal and wife of
late Himanshu Mandal, resident of village Chhota Baglata, P.O.
Rasunchopa, P.S. Kowali, District East Singhbhum.
48. Latika Rani Mandal, daughter of late Abani Kanta Mandal and wife of
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late Laxmipada Mandal, resident of Village Narayanpur, P.O. Bhalki,
P.S. Kowali, District East Singhbhum.
49. Bandana Mandal, wife of late Ram Krishna Mandal (who was son of
late Abani Kanta Mandal), resident of village Kharband, P.O. Amlatola,
P.S. Kowali, District East Singhbhum.
50. Bishwajit Mandal, son of late Ram Krishna Mandal (who was son of
late Abani Kanta Mandal), resident of village Kharband, P.O. Amlatola,
P.S. Kowali, District East Singhbhum.
51. Jolly Mandal, daughter of late Ram Krishna Mandal (who was son of
late Abani Kanta Mandal), wife of Jayanta Mandal, resident of village
Hensalbil, P.O. Potka, P.S. Potka, District East Singhbhum.
52. Pochi Rani Mandal, daughter of late Naresh Chandra Mandal and wife
of Shrinibash Mandal, by faith Hindu, resident of village Pandarsauli,
P.O. Narda, P.S. Kowali, District East Singhbhum.
53. Mallika Rani Mandal, daughter of late Naresh Chandra Mandal and
wife of Monotosh Mandal, resident of Village Pandarsuli, P.O. Narda,
P.S. Kowali, District East Singhbhum.
54. Baruna Rani Mandal, daughter of late Naresh Chandra Mandal and
wife of Hemanta Kumar Mandal, resident of Village Pata Heusal, P.O.
B. Kutung, P.S. Rajnagar, District Saraikeella Kharswan.
55. Rina Rani Mandal, daughter of late Naresh Chandra Mandal and wife
of Jagadish Mandal, resident of Village Sukal Bhalki, P.O. Bhalki,P.S.
Kowali, District- East Singhbhum.
56. Makul Rani Mandal,Daughter of Late Naresh Chandra Mandaland Wife
of Dilip Kumar Mandal, resident of Village Pata Hansal, P.O.B. Kutung,
P.S. Rajnagar, District Saraikella Kharswan.
57. Bakul Rani Mandal Daughter of Late Naresh Chandra Mandal and Wife
of Sujit Kumar Mandal, resident of Village Mangram, P.O. Bhalki, P.S.
Kowali, District East Singhbhum
58. Gopal Krishna Mandal, Son of Late Naresh Chandra Mandal, resident
of Village Kharband, P.O. Amlatola, P.S. Kowali, District East
Singbhum.
59. Lily Mandal, Wife of Ansuman Mandal and Daughter of Late Ashutosh
Mandal, resident of Villaga Jamda, P.O. Bara Deuli, P.S. Kowali, District
East Singhbhum.
60. Ambika Mandal, Wife of Late Ashutosh Mandal, resident of Village
Kharband, P.O. Amlatola, P.S. Kowali, District East Singhbhum.
61. Tapan Kumar Mandal, Son of Late Amulya Ratan Mandal, resident of
Village Kharband, P.O. Amlatola, P.S. Kowali, District East Singhbhum.
62. Khukhu Rani Mandal,Daughter of Late Amulya Ratan Mandal and Wife
of Chitta Ranjan Manda, resident of Village Bara Bhumri, P.O. Juri, P.S.
Potka, District East Singhbhum.
63. Puspa Mandal, Daughter of Late Amulya Ratan Mandal, Wife of Bijay
Mandal, resident of Village Bara Bhumri, P.O. Juri, P.S. Potka District
East Singhbhum
64. Shephali Mandal, Daughter of Late Amulya Ratan Mandal and Wife of
Sudhir Mandal,resident of Village Sangram, P.O. Sangram, P.s. Potka
District East Singhbhum
65. Dipak Kumar Mandal, Son of Late Amulya Ratan Mandal, Resident of
Kharband, P.O. Amlatola, P.S. Kowali District East Singhbhum
66. Barendra Nath Mandal, Son of Late Amulya Ratan Mandal, resident of
Village Kharband, P.O. Amlatola P.S. Kowali, District East Singhbhum
67. Krishna Rani Mandal, Daughter of Amulya Ratan Mandal, Wife of
Jagdish Chandra Mandal, resident of Village Khairbani, P.O. B. Kutung,
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P.S. Rajnagar, District- Saraikela Kharswan
68. Sampad Kumar Mandal, Son of Late Amulya Ratan Mandal, resident
of Village Kharband, P.O. Amalatola, P.S. Kowali, District East
Singhbhum
69(a) Sandhya Rani Mandal, Daughter of Late Aswani Kumar Mandal,
resident of Village Chhota Sigdi, P.O. and P.s. Potka, District East
Singhbhum
69 (b) Sabita Rani Mandal, Daughter of Late Aswani Kumar Mandal, resident
of Village Mahuldhiya, P.O. Tangrain and P.S. Kowali, District East
Singhbhum
70. Kamala Mandal, Daughter of Late Debendra Nath Mandal, Wife of
Kishori Mohan Mandal, resident of Village Sigdi, P.O. Potka, P.S. Potka,
District East Singhbhum.
71. Ila Mandal, Wife of Late Narayan Chandra Mandal, resident of Village
Kharband, P.O. Amlatola, P.S. Kowali, District East Singhbhum.
72. Ritubarna Mandal, Daughter of Late Narayan Chandra Mandal, Wife
of Jagendra Mandal, resident of Village Barajuri, P.O. Barajuri, P.S.
Ghatsila, District East Singhbhum.
73. Gargi Mandal, Daughter of Late Narayan Chandra Mandal, resident of
Village Kharband, P.O. Amlatola, P.S. Kowali, District East Singhbhum.
74. Anjali Rani Mandal (Deleted)
75. Putul Rani Mandal, Daughter of Late Ambujaksha Mandal and Wife of
Ashit Kumar Mandal, resident of Village Kowali, P.O. Kowali, P.S.
Kowali, District East Singhbhum.
76. Meghli Rani Mandal, Daughter of Late Ambujaksha Mandal and Wife
of Mohitosh Mandal, resident of Village Sangram P.O. Sangram P.S.
Potka, District- East Singhbhum ... Opposite Parties
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
-----
For the Petitioners : Mr. Sanjay Kumar Pandey, Advocate (through VC)
Mr. Rajan Kumar Tiwary, Advocate
Mrs. Prachi Pradipti, Advocate
For the Opposite Parties :
-----
08/08.07.2025 Heard Mr. Sanjay Kumar Pandey, learned counsel appearing through
VC along with Mrs. Prachi Pradipti and Mr. Rajan Kumar Tiwary appearing for
the petitioners.
2. Notices upon opposite party nos. 1 to 76 have been effected, however,
till date they have not appeared and in view of that, with a view to provide
one more opportunity to the opposite parties, the matter was adjourned on
09.06.2025 and in spite of that, they have chosen not to appear before this
Court. As such, this petition is being heard in absence of the opposite parties.
2025:JHHC:18266
3. This petition has been filed under Article 227 of the Constitution of
India for setting-aside the order dated 01.03.2023 passed by learned
Additional Civil Judge (Jr. Division-X), Jamshedpur, whereby, the learned
Court has been pleased to dismiss the Original Title Suit No. 27 of 2019 filed
under Order IX, Rule-5 of the C.P.C.
4. Learned counsel appearing for the petitioners submit that the
petitioners/plaintiffs have instituted Original Title Suit No. 27 of 2019 inter-
alia for a decree for declaration that the judgment dated 26.08.1992 and
decree drawn on 02.09.1992 by the Sub-Judge III, Jamshedpur in Title Suit
No. 20-23/1987-90 was not binding upon them. The further prayer was made
for setting-aside the judgment dated 26.08.1992 and decree drawn on
02.09.1992 by the Sub-Judge III, Jamshedpur in Title Suit No. 20-23/1987-
90 on the ground that fraudulently the said decree was obtained. The said
suit was admitted on 03.06.2019 and after issuance of summons, postal
receipts were filed on 28.06.2019 and the matter was fixed for appearance
of opposite parties and for service report. She submits that on 09.03.2022,
the petitioners filed information before the trial Court that proforma
defendant No. 46 had died on 31.01.2020 and as such the learned Court
directed the petitioners to take proper step upon the proforma defendant No.
46 and 53. She further submits that the report was put up on account of
COVID-19 on 30.03.2020, 23.06.2020, 16.07.2020, 10.09.2020, 21.10.2020,
18.02.2021 and the next date was fixed on 25.05.2021 for service report as
well as for proper step against proforma defendant no.46 and 53. According
to her, since the Courts were working in hybrid mode around the relevant
time, due to COVID-19, the plaintiffs could not comply the direction for
proper step on proforma defendant no.46 for next 6 dates but filed the
required petition on 09.03.2022 even without any date fixed which was
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directed to be put up on the next date fixed by the learned Court. In the
meantime, the case was transferred by the order of the Principal District
Judge to another Court. The petitioners/plaintiffs have filed petition on
29.11.2022 under Order XXII (2) read with Section 151 C.P.C., however, the
defendants took no step. On the next date i.e. 06.01.2023, the lawyers
abstained from work and the learned Court was also on leave. She submits
however, just one day thereafter, the learned Court has been pleased to
dismiss the whole suit of the plaintiffs in terms of order dated 01.03.2023 by
wrongly invoking provision under Order IX, Rule 5 of the C.P.C. She submits
that if the compliance was not made for defendant nos. 46 and 53, the suit
can abate against two defendants, however, the learned Court has been
pleased to dismiss the entire suit, which is against the mandate. On these
grounds, she submits that the impugned order may kindly be set-aside.
5. It is an admitted position that the suit was admitted in which the
direction has been issued to issue notice and further direction was made to
the plaintiffs to take proper steps for substitution and service of notice upon
defendants nos. 46 and 53, however, it was not complied within the time and
the reasons have been assigned that hearing in the Courts were made in
hybrid mode due to COVID-19, however, a petition was filed later on, i.e. on
29.11.2022 disclosing the facts and requesting the Court to take it on the
record.
6. It is well-known that the effect of a suit abating against one out of
two or more defendants is exactly the same as if he had not been impleaded
as a defendant at all. Rule 4 of Order XXII of C.P.C. deals with the death of
one defendant out of two or more when the right to sue does not survive
against the surviving defendants; if no application is made within the
prescribed time for bringing on the record the legal representatives of the
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deceased defendant "the suit shall abate as against the deceased defendant"
and cannot abate against the other defendants. A suit may fail against the
other defendants on other grounds, but it cannot abate as against them. If
under a statute suit cannot be filed without joining the deceased defendant,
it will fail not on the ground that it abates, but on the ground that it is not
maintainable under the law unless he or his successors-in-interest is
impleaded.
7. Abatement of an appeal is governed by the provisions regarding
abatement of suits in Order XXII of C. P. C. Rule 4 of Order XXII deals with
the death of one defendant out of two or more. It has been made clear
in Shibban v. Allah Mehar, reported in AIR 1934 All 716, Mt. Ram Dei
v. Jurawan Missi, reported in AIR 1930 All 762, Mohan Singh v. Moti
Singh, reported in 1960 All LJ 932 and Shivamrathi Kunwar v.
Dharam Deo Singh, reported in AIR 1951 All 428, that a suit abates
only against the deceased defendant and cannot abate against surviving
defendants.
8. The effect of a suit abating against one out of two or more defendants
is exactly the same as if he had not been impleaded as a defendant at all.
If a suit is instituted against 'A' and 'B' and 'B' dies and the suit abates as
against him, the suit will proceed against 'A' as if it had been instituted
against him alone. In other words, the suit against 'A' will be governed by
the provisions of Order I. Rule 9 of Order I is to the effect that no suit shall
be defeated by reason of non-joinder of parties and that the Court may in
every suit deal with the matter in controversy so far as regards the rights
and interests of the parties actually before it. Thus, the Court will be bound
to deal with the suit as against 'A' so far as regards the rights and interests
of the plaintiff and 'A' are concerned. If there is a statutory provision which
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lays down that a suit will not be maintainable against 'A' without 'B' being
impleaded, the suit will fail as against 'A' by virtue of the statutory provision.
9. In view of the above facts, reasons and analysis, the Court finds that
the entire suit has been wrongly dismissed by the learned Court relying on
Order IX Rule 5 of the C.P.C., whereas, abatement should be only of
defendant nos. 46 and 53 and, as such, the order dated 01.03.2023 passed
by learned Additional Civil Judge (Jr. Division-X), Jamshedpur in Original Title
Suit No. 27 of 2019 is, hereby, set-aside.
10. Original Title Suit No.27 of 2019 is restored to the file of the learned
Court so far as other defendants are concerned, barring defendant nos. 46
and 53 as suit against them has already been abated.
11. Accordingly, this petition is allowed in above terms and disposed of.
(Sanjay Kumar Dwivedi, J.)
Ajay/ Vedanti/ A.F.R.
