[Cites 3, Cited by 0]
Orissa High Court
Abdul Ahad @ Abdul Ahad Khan vs Sayed Jamal Sahed (Since Dead) Through on 9 April, 2026
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.16521 OF 2016
(An application under Articles 226 and 227 of the Constitution of India)
*****
1. Abdul Ahad @ Abdul Ahad Khan
2. Abdul Sahim @ Abdul Sahim Khan
3. Soni Khan ...... Petitioners
-Versus-
1. Sayed Jamal Sahed (since dead) through,
his legal heirs and others,
...... Opp. Parties
Advocates appeared:
For Petitioners : Mr. Sambit Kumar Patri, Advocate
On behalf of Mr. Debasis Tripathy, Advocate
For Opp. Parties : Mr. K.M.H. Niamati, Advocate,
(For Opposite Party No.4)
Mr. S.N Pradhan, Advocate
(for Opposite Party Nos.2(a) to 2(d)
CORAM :
MR. JUSTICE K.R. MOHAPATRA
MR. JUSTICE SANJAY KUMAR MISHRA
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Heard and disposed of on 09.04.2026
----------------------------------------------------
JUDGMENT
By the Bench;
1. This matter is taken up through hybrid mode.
2. Petitioners in this writ petition pray for a direction to
set aside the order dated 09.08.2016 (Annexure-4 series)
passed by learned Presiding Officer, Wakf Tribunal, Orissa,
Cuttack in W.T(O)/O.A. No.09 of 2016, by which the legal
W.P.(C) No.16521 OF 2016
heirs of deceased Defendant Nos.1, 7, 8 & 9 were impleaded
as parties to the said O.A.
3. Mr. Sambit Kumar Patri, learned Counsel being
authorised by Mr. Tripathy, learned Counsel for the
Petitioners submits that the impugned order is per se illegal.
The Plaintiff-Opposite Party No.1 filed W.T(O)/O.A. No.09
of 2016 impleading Defendant Nos.1, 7, 8 & 9 as parties. But
the summons issued to them returned unserved indicating that
they are dead. In fact, the Defendant Nos.1, 7, 8 & 9 died
prior to filing of the O.A. Thus, the O.A. itself was not
maintainable as it was filed against dead persons.
3.1. The Plaintiff-Opposite Party No.1, in order to
regularise the O.A., filed an application under Order-22, Rule-
4 of C.P.C. to substitute the legal representatives of deceased
Defendant Nos.1, 7, 8 & 9. Learned Presiding Officer, Wakf
Tribunal, most illegally exercised his power under Order-1,
Rule-10 of C.P.C. and impleaded the legal heirs of deceased
Defendant Nos.1, 7, 8 & 9 as parties to the said O.A. It is his
submission that by impleading them as parties, the present
Petitioners, who are Defendant Nos.2, 3 & 4 before the Wakf
Tribunal are highly prejudiced, as they have to face litigation,
which was not maintainable from its inception. He, therefore,
prays for setting aside the impugned order and to dismiss the
O.A.
4. Mr. Niamati, learned Counsel appearing for the Orissa
Board of Wakf, Cuttack (Opposite Party No.4) vehemently
objects to the same. It is his submission that the Court has
W.P.(C) No.16521 OF 2016
ample power under Order-1, Rule-10(2) of C.P.C., either to
implead or to strike off any party for just adjudication of the
case. For effective and complete adjudication of the lis the
Wakf Tribunal rightly exercised power under Order-1, Rule-
10(2) of C.P.C. by impleading the legal representatives of
deceased Defendant Nos.1, 7, 8 & 9 to the O.A.
4.1. It is his submission that learned Tribunal while
disposing of the application has categorically observed that by
addition of parties, the nature and character of the suit would
not change. Their presence in the suit would avoid further
litigation in respect of the suit land. Learned Wakf Tribunal
further observed that addition of the legal heirs of the
deceased Defendant Nos. 1, 7, 8 and 9 as parties to the suit
would enable the Court to effectually and completely
adjudicate the dispute between the parties. He, therefore,
submits that there is no illegality in the impugned order dated
09.08.2016 and prays for dismissal of the writ petition.
5. Taking note of the submissions made by learned
Counsel for the parties and on perusal of the record, it appears
that the Plaintiff initially filed requisites for issuance of
summons to Defendants Nos.1, 7, 8 & 9. But the said notices
returned unserved with a noting that they are dead. It is
submitted by Mr. Patri, learned Counsel that the said
Defendants were dead much prior to filing of the suit (O.A.).
However, a petition was filed by the Plaintiff under Order-22,
Rule-4 read with Order-1, Rule-10 of C.P.C. with a prayer to
W.P.(C) No.16521 OF 2016
implead the legal representatives of the deceased Defendant
Nos.1, 7, 8 & 9 as parties to the suit.
6. Although, an application under Order-22, Rule-4 of
C.P.C. would not be maintainable, as it is submitted by Mr.
Patri, learned Counsel that the Defendant Nos.1, 7, 8 & 9 were
dead prior to filing of the suit (O.A.), but a petition under
Order-1, Rule-10 C.P.C. would be maintainable to implead
legal heirs of the said Defendants as parties to the suit for its
effective and complete adjudication. There is no bar under law
to implead the legal representatives of deceased Defendants as
parties to the suit although the said defendants died prior to
filing of the suit. Learned Wakf Tribunal while adjudicating
the matter has taken ample care in that regard and passed an
order impleading the legal representatives of deceased
Defendant Nos.1, 7, 8 & 9 as parties to the suit (O.A.) for
effective and complete adjudication of the suit.
7. In view of the above, we find no infirmity in the
impugned order dated 09.08.2016 (Annexure-4 series) passed
by the learned Presiding Officer, Wakf Tribunal, Orissa,
Cuttack in W.T(O)/O.A. No.09 of 2016.
8. Accordingly, the writ petition being devoid of any
merit stands dismissed. In the facts and circumstances of the
case there shall be no order as to costs.
9. It appears from the order sheet of the writ petition that
the interim order is not operating in the present writ petition
since 06.03.2017.
W.P.(C) No.16521 OF 2016
10. In view of the above, it is directed that learned
Presiding Officer, Wakf Tribunal, Orissa, Cuttack shall take
steps for early disposal of W.T(O)/O.A. No.09 of 2016
keeping in mind that the O.A. is pending since 2016, if the
same is still pending.
Urgent certified copy of this judgment be granted on
proper application.
(K.R. Mohapatra)
Judge
(S.K. Mishra)
Judge
Orissa High Court, Cuttack,
Dated 9th April, 2026/Prasant
W.P.(C) Signed OF 2016
No.16521
Signed by: PRASANT KUMAR PRADHAN
Designation: Secretary
Reason: Authentication
Location: High Court of Orissa, Cuttack.
Date: 10-Apr-2026 13:31:22
