Orissa High Court
Sanatan Bag And Others vs Thana Sundar Bag on 9 December, 2021
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.5032 of 2010
Sanatan Bag and others .... Petitioners
Mr. B. Sahoo, Advocate
-versus-
Thana Sundar Bag .... Opp. Party
Mr. Saktidhar Das, Senior Advocate,
Along with Haripada Mohanty, Advocate
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 09.12.2021
6. 1. This matter is taken up through hybrid mode.
2. Petitioners in this writ petition seek to assail the order
dated 6th January, 2010 (Annexure-1) passed by learned District
Judge, Sundagarh in RFA No.14 of 2005 in an application filed
by the Opposite Party under Order XXII Rule 4 read with Order
1 Rule 10 CPC allowing substitution of the Opposite Party in
place of deceased respondent on the basis of a Will.
3. It is submitted by Mr. Sahoo, learned counsel for the
Petitioners that TS No. 3 of 2002 was filed for declaration of
right, title and interest over the 'B' schedule property to the
plaint excluding 'C-2' schedule property. The Plaintiffs-
Petitioners also prayed to declare that anybody claiming right,
title and interest by virtue of any document are null and void.
The said suit was dismissed by the learned Civil Judge (Senior
Division), Sundargarh, vide judgment dated 17th January, 2005
against which Petitioners filed RFA No.14 of 2005, which is
pending before learned District Judge, Sundargarh for
adjudication. During pendency of the said appeal, sole
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respondent, namely, Bidyadhar Bag died on 15th August, 2006.
From impugned order, it reveals that substitution petition was, in
fact, filed on 6th November, 2006, i.e., within the period of
limitation. But the same was misplaced in the office of learned
District Judge. However, the Opposite Party filed another
petition for his substitution in place of deceased Bidyadhar Bag
on the basis of a Will executed by said Bidyadhar in favour of
Opposite Party. Learned District Judge, Sundargarh, considering
the said application, passed the impugned order under Annexure-
1, which is under challenge in this writ petition.
4. Mr. Sahoo, learned counsel for the Petitioners submits
that the genuineness of the Will is yet to be examined by
competent Court of law. Unless and until probate or letter of
administration in respect of the Will is granted, the Opposite
Party cannot be substituted in place of the sole deceased
respondent, namely, Bidyadhar Bag and such a prayer could not
have been granted. It is his submission that the Will has been
executed under suspicious circumstances. Thus, learned District
Judge should not have allowed the substitution petition solely
relying upon the said Will genuineness of which is yet to be
examined by competent Court of law. Rather, learned District
Judge could have directed learned Civil Judge to make an
enquiry in to the matter under Order XXII Rule 5 CPC. Hence,
he prays for setting aside of the impugned order.
5. Mr. Das, learned Senior Advocate appearing for the
Opposite Party, on the other hand, submits that learned District
Judge, Sundargarh, has committed no error in allowing such
application. In fact, substitution application was filed on 6th
September, 2006, i.e., within the period of limitation. Said
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application was, however, misplaced in the office of learned
District Judge. In order to verify as to whether such an
application was filed or not, learned District Judge made a
thorough scrutiny of the related records. Verifying the Court fee
register, learned District Judge came to the conclusion that such
a petition was, in fact, filed, but, the same was not available on
record. Hence, relying upon the well-recognized maxim of
equity, namely, 'actus curiae neminem gravabit', which means,
for an act of the Court, a litigant should not suffer, opined that
the Opposite Party should not suffer for the fault of the Court
and came to a conclusion that the appeal would not abate. He
also relied upon a decision of this Court in the case of Jaysingh
Mallick Vs. the State of Odisha and others, reported in 2016
(II) ILR 1069 in support of the same. He further submits that the
beneficiary of a Will can be substituted in place of the testator to
represent his case in the litigation. He, therefore, prays for
dismissal of the writ petition.
6. Taking into consideration the submissions made by
learned counsel for the parties, it is apparent that the Opposite
Party had filed a memo on 6th September, 2006 intimating the
Court about the death of Bidyadhar Bag and had also filed a
petition for substitution. However, the same was misplaced in
the office of the District Judge. As rightly submitted by Mr. Das,
learned Senior Advocate that a party should not suffer for the
fault of the Court. This Court, in the case of Promodini Patnaik
(since dead) Vs. Jayashree Tarai, reported in 2016 (I) ILR CUT
201 has held that a beneficiary of a Will can be substituted in
place of the testator to represent his case in the litigation. In
other words, an executor can only represent and continue the
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litigation on behalf of the testator, but he cannot claim/establish
his independent right over the property covered under the
Will/testament unless the probate or letter of administration is
granted in his favour by a competent court of law, if required.
7. In view of the above, I have no hesitation to hold that
learned District Judge, Sundargarh has committed no error in
allowing the application for substitution filed by the Opposite
Party. The Opposite Party without claiming any independent
right over the subject matter of dispute can prosecute the appeal
on behalf of the deceased appellant. Accordingly, the writ
petition being devoid of any merit stands dismissed. Learned
District Judge, Sundargarh shall make an endeavour for early
disposal of the appeal, i.e., RFA No.14 of 2005 in accordance
with law, if there is no legal impediment. Parties are directed to
co-operate with learned Appellate Court for early disposal of the
appeal.
Issue urgent certified copy of the order on proper
application.
(K.R. Mohapatra)
Judge
s.s.satapathy
