Orissa High Court

India) vs Ambika Prasad Mohanty And .... Opposite ... on 27 October, 2025

Author: B.P. Routray

Bench: B.P. Routray

Signature Not Verified
Digitally Signed
Signed by: BASANTA KUMAR BARIK
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 07-Nov-2025 10:58:36




                                      IN THE HIGH COURT OF ORISSA AT CUTTACK
                                                      C.M.P. No.738 of 2025
                            (In the matter of an application under Article 227 of the Constitution of
                            India)
                             Umesh Chandra Pattnaik@                   ....                   Petitioner
                             Pattanaik
                                                                    -versus-
                             Ambika        Prasad    Mohanty     and ....             Opposite Parties
                             others
                            Advocate(s) appeared in this case:-

                                          For Petitioner         : Mr. S. Das, Advocate

                                          For Opposite Parties   : Mrs. S. Jena, Advocate
                                                                   For O.P. No.1

                                            CORAM: JUSTICE B.P. ROUTRAY
                                                             JUDGMENT

27th October 2025

B.P. Routray, J.

1. Since Opposite Parties 2 to 4 are proforma Opposite Parties, on

the request of Mr. S. Das, learned counsel for the Petitioner, the notice

on them is dispensed with for the time being.

2. Heard Mr. S. Das, learned Advocate for the Petitioner and Mrs.

S. Jena, learned Advocate for Opposite Party No.1.

3. Present C.M.P. is directed against the order dated 17.02.2025

passed in C.M.A. No.72 of 2024 (arising out of C.S. No.111 of 2020)

Signed by: BASANTA KUMAR BARIK

Location: High Court of Orissa, Cuttack Date: 07-Nov-2025 10:58:36

by the learned Civil Judge (Sr. Divn.), Kujang, wherein the prayer of

the Plaintiff (present Opposite Party No.1) to withdraw the C.M.A. was

allowed granting liberty to him to file a better application.

4. Present Opposite Party No.1 being the Plaintiff filed C.S.

No.111 of 2020 which was dismissed for default on 17.09.2024.

Thereafter the Plaintiff filed an application for restoration of the suit on

30.09.2024 as per Order 9 Rule 9, C.P.C. which was registered as

C.M.A. No.72 of 2024. Subsequently it came to the knowledge of the

Plaintiff that during pendency of the suit and before its dismissal,

Defendants 1, 3, 7 & 8 died in the meantime and therefore, a better

application is required to be filed on behalf of the Plaintiff since the

present C.M.P. is not maintainable against the dead persons. Thus, the

Plaintiff filed a petition under Order 23 Rule 1, C.P.C. praying for

withdrawal of C.M.A. with liberty to file a fresh application.

5. The Petitioner objects such prayer of the Plaintiff granting him

leave to apply afresh while withdrawing the C.M.A. and according to

him, the Plaintiff is not entitled to be granted with said leave since it

was within his knowledge that those Defendants were died during

pendency of the suit and he did not take any step for their substitution.

Signed by: BASANTA KUMAR BARIK

Location: High Court of Orissa, Cuttack Date: 07-Nov-2025 10:58:36

6. Conversely, it is submitted by Mrs. S. Jena, learned counsel, on

behalf of the Plaintiff that whatever may be the reason is, the admitted

fact remains that by the time of filing of the petition under Order 9

Rule 9, C.P.C. said Defendants were already dead and a petition

against a dead person is not maintainable.

7. The objection raised by the Plaintiff is found misconceived.

Order 22 Rule 4 of the C.P.C. lays down that where no application is

made within the time limited by law to implead the legal

representatives of a deceased Defendant, the suit shall abate as against

a deceased Defendant. This rule does not provide that by the omission

to implead the legal representative of one Defendant, the suit will abate

as a whole. If the interests of the co-defendants are separate, the suit

will abate only as regards the particular interest of the deceased party.

Order 9 Rule 9 of the C.P.C. confers right on the Plaintiff to apply for

restoration of the suit provided he satisfies sufficient cause for his non-

appearance. Dismissal of the suit for non-prosecution and restoration of

the same is independent of the right of Plaintiff to substitute a deceased

Defendant as per provisions contained Order 22 Rule 4 of the C.P.C.

Signed by: BASANTA KUMAR BARIK

Location: High Court of Orissa, Cuttack Date: 07-Nov-2025 10:58:36

8. The fact of death of Defendants 1, 3, 7 & 8 during pendency of

the suit is undisputed. The suit was dismissed for default on 17.09.2024

and nowhere it was brought on record by Defendant No.2 that the

death of such Defendants had ever been brought to the notice of the

Plaintiff during pendency of the suit. So, it is not the case of the

Defendants that death of Defendants 1, 3, 7 & 8 was within the

knowledge of the Plaintiff before dismissal of the suit. Thus, the plea

taken on the part of the Plaintiff that it was not within his knowledge

during pendency of the suit regarding death of such Defendants is not

found unbelievable.

9. The leave to file a better application within the scope of Order

23 Rule 1, C.P.C. is within the discretion of the court taking note of the

fact of such reasons that, the suit may fail by reason that the

adjudication of the suit cannot be completed without presence of such

parties.

10. In K.S. Bhoopathy v. Kokila, (2000) 5 SCC 458, it has been

explained as follows:-

"12. The law as to withdrawal of suits as enacted in the present Rule may be generally stated in two parts:

Signed by: BASANTA KUMAR BARIK

Location: High Court of Orissa, Cuttack Date: 07-Nov-2025 10:58:36

(a) a plaintiff can abandon a suit or abandon a part of his claim as a matter of right without the permission of the court; in that case he will be precluded from suing again on the same cause of action.

Neither can the plaintiff abandon a suit or a part of the suit reserving to himself a right to bring a fresh suit, nor can the defendant insist that the plaintiff must be compelled to proceed with the suit; and

(b) a plaintiff may, in the circumstances mentioned in sub-rule (3), be permitted by the court to withdraw from a suit with liberty to sue afresh on the same cause of action. Such liberty being granted by the court enables the plaintiff to avoid the bar in Order II Rule 2 and Section 11 CPC.

13. The provision in Order XXIII Rule 1 CPC is an exception to the common law principle of non-suit. Therefore on principle an application by a plaintiff under sub-rule (3) cannot be treated on a par with an application by him in exercise of the absolute liberty given to him under sub-rule (1). In the former it is actually a prayer for concession from the court after satisfying the court regarding existence of the circumstances justifying the grant of such concession. No doubt, the grant of leave envisaged in sub-rule (3) of Rule 1 is at the discretion of the court but such discretion is to be exercised by the court with caution and circumspection. The legislative policy in the matter of exercise of discretion is clear from the provisions of sub-rule (3) in which two alternatives are provided; first where the court is satisfied that a suit must fail by reason of some formal defect, and the other where the court is satisfied that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim. Clause (b) of sub-rule (3) contains the mandate to the court that it must be satisfied about the sufficiency of the grounds for allowing the plaintiff to institute a fresh suit for the same claim or part of the claim on the same cause of action. The court is to discharge the duty mandated under the provision of the Code on

Signed by: BASANTA KUMAR BARIK

Location: High Court of Orissa, Cuttack Date: 07-Nov-2025 10:58:36

taking into consideration all relevant aspects of the matter including the desirability of permitting the party to start a fresh round of litigation on the same cause of action. This becomes all the more important in a case where the application under Order XXIII Rule 1 is filed by the plaintiff at the stage of appeal. Grant of leave in such a case would result in the unsuccessful plaintiff to avoid the decree or decrees against him and seek a fresh adjudication of the controversy on a clean slate. It may also result in the contesting defendant losing the advantage of adjudication of the dispute by the court or courts below. Grant of permission for withdrawal of a suit with leave to file a fresh suit may also result in annulment of a right vested in the defendant or even a third party. The appellate/second appellate court should apply its mind to the case with a view to ensure strict compliance with the conditions prescribed in Order XXIII Rule 1(3) CPC for exercise of the discretionary power in permitting the withdrawal of the suit with leave to file a fresh suit on the same cause of action. Yet another reason in support of this view is that withdrawal of a suit at the appellate/second appellate stage results in wastage of public time of courts which is of considerable importance in the present time in view of large accumulation of cases in lower courts and inordinate delay in disposal of the cases."

11. In the case at hand, when the fact of knowledge of the Plaintiff

regarding death of such Defendants is not established to be within his

knowledge during pendency of the suit, the approach of the Plaintiff to

withdraw the application under Order 9 Rule 9, C.P.C. with leave to

apply afresh is seen with bonafide reasons on the part of the Plaintiff

and falling within the scope of 'some formal defect' as envisaged in

Signed by: BASANTA KUMAR BARIK

Location: High Court of Orissa, Cuttack Date: 07-Nov-2025 10:58:36

Rule 1(3) of Order XXIII C.P.C. It is further necessary to add all such

persons in the suit without whose presence the adjudication of the

dispute cannot be completed. That apart, the objection of Defendant

No.2 is with regard to non-substitution of deceased Defendants only.