Orissa High Court
M/S. Bluline Resorts Pvt. Ltd vs M/S. Hotel Sea Point Pvt. Ltd on 3 April, 2025
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRP No.23 of 2023
(In the matter of an application under Section 115 of the Code of
Civil Procedure)
M/s. Bluline Resorts Pvt. Ltd., .... Petitioner
represented through its Managing
Director, Mr. Debasish Patnaik
-versus-
M/s. Hotel Sea Point Pvt. Ltd, .... Opposite Party
represented through its Director,
Usha Jena
Appeared in this case:-
For Petitioner : Mr. Avijit Pal, Advocate
For Opposite Party : Mr. G. Samantaray, Advocate
assisted by Mr. S. Routray,
Advocate
Appeared in this case:-
CORAM:
JUSTICE A.C. BEHERA
JUDGMENT
Date of hearing : 03.03.2025 / date of judgment : 03.04.2025
A.C. Behera, J. This revision under Section 115 of the C.P.C., 1908 has been filed
by the petitioner(defendant in the pending suit vide C.S. No.462 of 2017
in the court of learned Additional Civil Judge, Sr. Division, Puri) against
an order of rejection to its petition under Order-7, Rule- 11(d) of the
C.P.C., 1908 passed on dated 06.05.2023.
2. The factual backgrounds of this revision, which prompted the
petitioner for filing of the same is that, the petitioner being the defendant
in the suit vide C.S. No.462 of 2017 of the plaintiff-company filed a
petition on dated 07.09.2022 under Order-7, Rule-11(d) of the C.P.C.,
1908 praying for rejection of the plaint of the plaintiff-company on the
ground that, the suit of the plaintiff-company vide C.S. No.462 of 2017 is
barred under law being hit by the provisions of res judicata as per
Section 11 of the C.P.C., 1908 stating that, the dispute between the
parties for the same subject matter has already been adjudicated / decided
by the sole arbitrator in an arbitration proceeding bearing No.349 of 2014
by the Hon'ble Former Justice Mr. M.M. Das of the High Court of
Orissa, as an Arbitrator thereof, for which, according to the defendant,
the dispute concerning the same subject matter cannot be
adjudicated/decided again in the subsequent suit vide C.S. No.462 of
2017 filed by the plaintiff-company. So, the defendant prayed for
rejection of the plaint of the plaintiff-company by filing a petition on
dated 07.09.2022 under Order-7, Rule-11(d) of the C.P.C., 1908, to
which, the plaintiff-company objected by filing its written objection.
3. After hearing from both the sides, the learned Additional Civil
Judge(Sr. Division), Puri rejected to the petition dated 07.09.2022 under
Order-7, Rule-11(d) of the C.P.C. of the defendant as per order dated
06.05.2023 assigning the reasons that, the suit of the plaintiff-company is
for recovery of possession, realization of arrear rents and mesne profits
along with other consequential relief(s) and the cause of action for filing
of the suit by the plaintiff-company is civil in nature, for which, the same
is adjudiciable in the civil court. So, the suit of the plaintiff-company is
not barred under law.
4. On being dissatisfied with the above order, i.e., rejection of the
petition under Order-7, Rule-11 of the C.P.C. of the defendant passed by
the learned Additional Civil Judge(Sr. Division), Puri on dated
06.05.2023, the defendant challenged the same by filing this revision
being the petitioner against the plaintiff-company arraying the plaintiff-
company as Opposite Party on the ground that, non-substitution of the
Managing Director of the plaintiff-company after his death, as per order
dated 06.07.2018, the suit vide C.S. No.462 of 2017 was abated and as
such, the suit was not in existence being abated, then, during the
subsistence of such abatement, the trial court should not have rejected to
the petition dated 07.09.2022 under Order-7, Rule-11(d) of the C.P.C.,
1908 of the defendant on 06.05.2023. For which, according to the
petitioner of this revision, order of rejection to the petition dated
07.09.2022 under Order-7, Rule-11(d) of the C.P.C. of the
petitioner/defendant on dated 06.05.2023 by the trial court is illegal and
contrary to law. Therefore, the said order dated 06.05.2023(Annexure-1)
passed by the trial court is to be set aside and that matter is required to be
remitted back to the trial court for the consideration of the same afresh as
per law.
5. I have already heard from the learned counsel for the
petitioner/defendant and the learned counsel for the Opposite
Party/Plaintiff.
6. During the course of hearing of this revision, in order to assail the
impugned order, the learned counsel for the petitioner/defendant relied
upon the decision of the Apex Court between My Palace Mutually Aided
Co-Operative Society vrs. B. Mahesh and others decided on 23.08.2022.
On the contrary, in support of the impugned order dated
06.05.2023 passed by the trial court, the learned counsel for the Opposite
Party (plaintiff-company) relied upon the decisions reported in (1996) 6
SCC 660, United Bank of India vrs. Naresh Kumar and others, AIR
online 2003 S.C. 537, Ram Chandra Singh vrs. Savitri Devi and others
and AIR 1971 Allahabad-407, Didwania and Co.(P) Ltd. in Liquidation
vrs. Jagdish Narain Indranarain and others.
7. The crux of this revision is,
whether, as per law, the suit vide C.S. No.462 of 2017 filed by the
plaintiff-company was abated on the basis of the order dated 06.07.2018
passed by the trial court and whether the trial court had power and
jurisdiction to decide the petition dated 07.09.2022 under Order-7, Rule-
11 of the C.P.C. of the petitioner/defendant?
8. It is the undisputed case of the parties that, the plaintiff in the suit
vide C.S. No.462 of 2017 is a company.
The said suit vide C.S. No.462 of 2017 was filed by the plaintiff-
company on being represented through human agency, i.e., through its
Managing Director Durga Charan Routray to prosecute that suit on
behalf of the plaintiff-company.
9. Due to non-substitution of the legal heirs of the deceased
Managing Director of the plaintiff-company within its statutory period
after his death, an order was passed by the learned trial court in the C.S.
No.462 of 2017 on dated 06.07.2018 as per Annexure-5 about the
abatement of that suit.
10. It appears from its next order-sheet dated 26.07.2018 after order-
sheet dated 06.07.2018 that, a petition was filed by the plaintiff-company
on the basis of the resolution in the meeting of the Board of Directors of
the plaintiff-company praying for recalling the order of abatement dated
06.07.2018 on the ground that, as per law, the suit vide C.S. No.462 of
2017 of the plaintiff-company cannot be abated for non-substitution of
the LRs of its Managing Director, because, the suit was not filed by the
Managing Director of the plaintiff-company, but, by the plaintiff-
company.
It was argued on behalf of the plaintiff-company(Opposite Party in
this revision) that, had there been abatement of the suit vide C.S. No.462
of 2017 of the plaintiff-company on dated 06.07.2018 as per law, the
defendant would not have filed petition on dated 07.09.2022 under
Order-7, Rule-11(d) of the C.P.C. praying for rejection of the plaint of
the suit of the plaintiff-company.
According to him, (the learned counsel for the Opposite Party)
knowing fully well that, the suit of the plaintiff-company vide C.S.
No.462 of 2017 has not been abated as per law on dated 06.07.2018, the
defendant had filed petition under Order-7, Rule-11(d) of the C.P.C.,
1908 on dated 07.09.2022 praying for rejection of the plaint of plaintiff-
company and accordingly, the defendant had participated in the hearing
of its petition dated 07.09.2022 without raising any question about the
abatement of that suit on dated 06.07.2018 and after rejection of the
petition dated 07.09.2022 of the defendant by the trial court as per order
dated 06.05.2023, the defendant has challenged the same by filing this
revision raising such question for the first time about the abatement of
the suit vide C.S. No.462 of 2017 of the plaintiff-company on dated
06.07.2018, for which, the defendant is estopped under law to challenge
the impugned order dated 06.05.2023 on the ground of lawful abatement
of the suit vide C.S. No.462 of 2017 of the plaintiff-company on dated
06.07.2018.
11. It is very fundamental in law that, a company is a juristic person
and when any suit is filed by or against any juristic person like the
plaintiff-company, the said plaintiff-company must be represented
through a human being.
The death of the representative of the plaintiff-company through
which, the suit vide C.S. No.462 of 2017 was filed by the plaintiff-
company, cannot be equated with the death of the plaintiff-company.
12. The propositions of law on this aspect has already been clarified
by the Hon'ble Courts and Apex Court in the ratio of the following
decisions:-
(i) In a case between Didwania and Co.(P) Ltd. in Liquidation
vrs. Jagdish Narain Indranarain and others : reported in AIR
1971 Allahabad-407 (para-3) that, a suit cannot possibly abate,
when the parties to it are alive. Company is a juristic
personality. The death of the liquidator of the company cannot
be equated with the death of a party to the suit. Since the
plaintiff-company was alive, the suit could not be declared to
have abated by reason of the death of one of the persons,
through whom the plaintiff-company had sued.
(ii) In a case between Swamy Vedya Nondji Moharaj vrs.
Shyamlal Chowhan : reported in 2024(3) Civil Law Judgment
S.C.-658 that, the main object/purpose behind substitution is
continuance of a case, because, mere substitution of a person as
L.R of the deceased by itself will not create any title in favour
of person substituted.
13. As per law, when, after the death of the Managing Director of the
plaintiff-company, (through whose representation, the suit vide C.S.
No.462 of 2017 was filed by the plaintiff-company), the suit of the
plaintiff-company vide C.S. No.462 of 2017 shall not abate as, the
plaintiff-company has not died and when the man object/purpose of
substitution is for continuance of the suit and when after knowing very
well about the order dated 06.07.2018 passed by the trial court in C.S.
No.462 of 2017, the defendant filed the petition on dated 07.09.2022
under Order-7, Rule-11(d) of the C.P.C. praying for rejection of plaint of
the plaintiff-company and also participated in the hearing of such petition
without raising any question about the abatement of the suit on dated
06.07.2018 and when after rejection of that petition dated 07.09.2022 of
the defendant on dated 06.05.2023, the defendant challenged the same
through this revision raising a question for the first time that, the suit of
the plaintiff-company vide C.S. No.462 of 2017 was not in existence on
the date of the impugned order, i.e., on dated 06.05.2023 due to its
abatement on dated 06.07.2018, then, at this juncture, by taking the
above conduct of the defendant into account, it is held that, the defendant
is estopped under law to challenge the impugned order dated 06.05.2023
through this revision on the ground of abatement of the suit on dated
06.07.2018. Because, it has been clarified in the ratio of the above
decision reported in AIR 1971(Allahabad)-407, that, any suit of any
plaintiff-company like the suit vide C.S. No.462 of 2017 at hand cannot
abate as per law on dated 06.07.2018 for non-substitution of the legal
heirs of its Managing Director Durga Charan Routray, because, the death
of the Managing Director of the plaintiff-company cannot be equated
with the death of the plaintiff-company.
So, the above grounds raised on behalf of the petitioner(defendant)
to assail the impugned order dated 06.05.2023 passed by the learned trial
court in the suit vide C.S. No.462 of 2017 are not tenable under law. For
which, there is no justification under law for making any interference
with the impugned order dated 06.05.2023(Annexure-1) passed by the
trial court in C.S. No.462 of 2017 through this revision filed by the
petitioner.
So, the decision relied upon by the petitioner(defendant) indicated
above in Para No.6 of this revision are not applicable to this revision on
facts as discussed above.
Therefore, there is no merit in the revision of the
petitioner(defendant). The same must fail.
14. In result, the revision filed by the petitioner is dismissed on
contest, but, without cost.
15. Accordingly, the revision filed by the petitioner(defendant) is
disposed of finally.
( A.C. Behera )
Judge
Orissa High Court, Cuttack
The 3rd of April, 2025/ Jagabandhu, P.A.
Designation: Personal Assistant
