Saransh Pansari vs Golapii Munda And Others
2023 Latest Caselaw 8838 Ori

                   IN THE HIGH COURT OF ORISSA AT CUTTACK
                                CMP NO.1341 OF 2015
                 Saransh Pansari                    ....                Petitioner
                                                    Mr. Kalyan Patanaik, Advocate

                                         -versus-
                 Golapii Munda and others                   ....    Opp. Parties
                                                Mr. Kousik Anand Guru, Advocate

                      CORAM:
                      JUSTICE K.R. MOHAPATRA
                                   ORDER

Order No.                        08.08.2023

  8.        1.      This matter is taken up through hybrid mode.

2. Order dated 23rd July, 2014 (Annexure-3) passed by learned Civil Judge (Junior Division), Sambalpur in Civil Suit No.89 of 2010 is under challenge in this CMP, whereby petition filed by Saransh Pansari and Sukriti Pansari and Rita Pansari to be substituted in place of deceased-Defendant No.4 has been partly allowed.

3. Mr. Patanaik, learned counsel for the Petitioner submits that the suit has been filed for declaration that judgments and decrees passed in some earlier suits are not binding on the Plaintiff and for permanent injunction. During pendency of the suit, Defendant No.4, namely, Ramesh Kumar Pansari died on 9th February, 2014 leaving behind his legal heirs. Since, the Plaintiff did not take any step for substitution of Defendant No.4, the above named persons filed petition under Order XXII Rule 4 read with Order I Rule 10 CPC to be impleaded as legal representatives of Ramesh Kumar Pansari. Since Rita Pansari, the widow of Ramesh Kumar Pansari has already been impleaded

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to the suit as Defendant No.3, learned trial Court directed to implead Sukriti Pansari as party to the suit as Defendant No.4(a) in place of deceased-Defendant No.4 refusing the prayer to implead Saransh Pansari (the Petitioner) as party to the suit. It is his submission that Saransh Pansari is the adopted son of Defendant Nos. 3 and 4. Hence, he has a right to represent Defendant No.4 in the suit. Non-impletion of Defendant No.4 to the suit will lead to multiplicity of litigation and the suit may be bad for non-joinder of necessary party. It is submission that question of adoption is not required to be decided in a petition for substitution. The Court has only to see as to whether the party to be substituted can represent the deceased who is a party to the suit. In the instant case, learned trial Court delved into the issue of adoption and refused to implead Saransh Pansari as a party to the suit. Hence, this CMP has been filed.

4. Mr. Guru, learned counsel for the Plaintiff-Opposite Party No.1 submits that after the impugned order was passed, the present Petitioners moved this Court in CMP No.1206 of 2015 in which they have not impleaded Saransh Pansari as party. Thus, they have accepted the order impugned herein.

5. Mr. Patanaik, learned counsel for the Petitioner, however submits that the CMP No.1206 of 2015 was filed by one Laxmi Munda and not by the present Petitioners. Hence, it was obligatory on the part of the Petitioner therein to implead the legal representatives of Ramesh Kumar Pansari as parties.

6. Taking into consideration the submission made by learned counsel for the Parties, this Court finds that on an

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application filed by Defendant No.3 and two others, namely, Sukriti Pansari and Saransh Pansari (the Petitioner) under order XXII Rule 4 read with Order I Rule 10 CPC, the impugned order has been passed. Learned trial Court allowed the petition in part impleading Sukriti Pansari as legal representative of deceased- Defendant No.4 as Rita Pansari, who is the one of the daughters of deceased-Defendant No.4, has already been impleaded as party to the suit as Defendant No.3. Learned trial Court refused to substitute Saransh Pansari (the Petitioner) as party to the suit.

7. Order XXII Rule 4 CPC enables a Court to substitute the legal representative of a party to purse the suit. The Court is not required to delve into the question as to who is the legal heir of the deceased. The Court has to see that who can represent the decease to pursue her interest in the suit. Since Defendant No.3 and Sukriti Pansari Defendant No.4(a) have already been impleaded as legal representatives to defend interest of the deceased -Defendant No.4, the Court has rightly refused to delve into the issue of adoption and refused to implead Saransh Pansari as party to the suit.

8. In view of the above, this Court finds no infirmity in the impugned order.

9. Accordingly, the CMP, being devoid of any merits stands dismissed.

10. Interim order dated 28th October, 2015 passed in Misc. Case No.1376 of 2015 stands vacated.

Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication (K.R. Mohapatra) Location: High Court of Orissa, Cuttack Date: 09-Aug-2023 13:01:11 Rojalin Judge