[Cites 4, Cited by 0]
Orissa High Court
Sk. Haidar vs Mamtaj Bibi & Others ..... Opposite ... on 9 April, 2026
Author: Aditya Kumar Mohapatra
Bench: Aditya Kumar Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No.919 of 2025
Sk. Haidar ..... Petitioner
Represented by Adv. -
Salauddin Khan,
M.K. Mohapatra,
D.P. Jena, S. Sahoo
-versus-
Mamtaj Bibi & Others ..... Opposite Parties
Mr. M/s. Janayatri Rout,
R. Swain, S.F. Ahmec
(O.P. No.1(a) to O.P.1(i)
M/s Tazweary Begu
Behera, R. Singh
(O.P.1(ka), 1(kha), 1(ga)
1(gha), 1(cha)
CORAM:
THE HON'BLE MR. JUSTICE ADITYA KUMAR
MOHAPATRA
ORDER
09.04.2026
Order No.
05. 1. This matter is taken up through Hybrid mode.
2. Heard learned counsel for the Petitioner as well as learned
counsel appearing for the Opposite Parties. Perused the CMP
application as well as the prayer made therein.
3. The Plaintiff in C.S. No.531 of 2012 pending in the Court of
learned 3rd Additional Senior Civil Judge, Balasore has approached
this Court by filing the present application under Article 227 of the
Constitution of India thereby challenging the impugned order dated
11.04.2025.
4. Learned counsel for the Plaintiff-Petitioner at the outset
contended that initially the Plaintiff filed a suit for declaration and
for cancellation of sale deed. In the suit, the Defendants appeared
pursuant to the notice. While the suit was pending for trial, the
Defendant No.1 Sk. Nabin died on 18.02.2023 leaving behind his
wife, two sons and three daughters as his legal heirs. The Plaintiff
initially filed an application under Order 22 Rule 4 of CPC read with
Order 1 Rule 10 of CPC on 11.08.2003. Though there was delay in
approaching the Court for substitution, however, no condonation of
delay application was filed along with the application for
substitution. The impugned order dated 11.04.2025 reveals that vide
order dated 22.02.2024, the learned trial Court observed that the said
application has been filed after lapse of six months and that since the
substitution petition has been filed after expiry of the prescribed
period of limitation and although opportunity was granted to the
Plaintiff to rectify the mistake of not filing the limitation application,
no steps were taken by the Plaintiff thereto. The learned trial Court
finally rejected the petition vide order dated 06.09.2024. As such,
the suit abetted against Defendant No.1.
5. While this was the position, the suit proceeded further. At the
time of argument the Plaintiff again filed another application under
Order 22 Rule 4 of CPC on 09.04.2025 without any application for
condonation of delay. Subsequently, the Plaintiff filed another
application under Order 22 Rule 9 of CPC on 11.04.2025. Both this
applications were taken up for hearing by the learned trial Court and
after hearing both sides, vide common order dated 11.04.2025 at
Annexure-2 to the CMP application, learned trial Court rejected both
the applications filed by the Plaintiff. Being aggrieved by such order,
the Petitioner has approached this Court by filing the present CMP
application.
6. While assailing the impugned order dated 11.04.2025, learned
counsel for the Petitioner at the outset contended that although
applications were filed before the learned trial Court under Order 22
Rule 4 as well as Order 22 Rule 9 of CPC to bring on record the
deceased-Defendant No.1 and to set aside the abetment of the suit as
against the Defendant No.1, however the same has not been
considered in its proper perspective by the learned trial Court. He
further contended that the learned trial Court has committed an
illegality by order dated 06.09.2024, which has attained finality and
that the learned trial Court has no jurisdiction to recall its own order.
It is only on such ground both the applications the Petitioner has
been disposed of by virtue of common impugned order.
7. In course of argument, learned counsel for the Petitioner
further contended that unless the Plaintiff is permitted to substitute
the legal heirs of the deceased-Defendant No.1 and unless the
abetment of the suit against the Defendant No.1 and his legal heirs is
set aside, the Plaintiff is likely to be seriously prejudiced. He further
contended that a valuable substantive right of the Plaintiff over the
property is involved in the suit. In such view of the matter, learned
counsel for the Petitioner contended that merely on the basis of a
technicality the right of the Plaintiff to proceed against the
Defendant No.1 and his legal heirs have been taken away. It was
also contended that the learned trial Court failed to provide
opportunity to the Plaintiff to rectify the mistake, if any, in the
application. On such ground, learned counsel for the Petitioner
contended that the impugned order dated 11.04.2025 is legally
unsustainable in law and, the same is likely to affect the Plaintiff
adversely. Accordingly, it was prayed that order dated 11.04.2025 be
set aside and the legal heirs of deceased-Defendant No.1 be
permitted to be brought on record.
8. Learned counsel appearing for the Opposite Party-Defendant
Nos. 2 to 7 on the other hand objected to the prayer made in the
present CMP application. Learned counsel for the Opposite Party at
the outset submitted that the learned trial Court has not committed
any illegality in rejecting the prayer of the Petitioner on the ground
that on an earlier occasion a similar application filed by the Plaintiff
was rejected by the learned trial Court. He further contended that the
learned trial Court has no power to either review or recall its own
order which has attained finality by the time the subsequent
application was filed. He further contended that since the suit has
abetted as against the Defendant No.1, the substantive right has
already accrued in favour of the legal heirs of the Defendant No.1
and in the event the order dated 11.04.2025 is set-aside, such
substantive right is likely to be seriously affected. He further
contended that since the failure is on the part of the Plaintiff to take
timely steps to bring on record the legal heirs of the Defendant No.1,
the Plaintiff is bound to suffer. Moreover, the learned trial Court has
followed the procedure as prescribed in the CPC. On such ground
learned counsel for the Opposite Party Nos.2 to 7 contended that the
CMP application is devoid of merit and accordingly, the same
should be dismissed.
9. Having heard the learned counsels appearing for both sides,
on a careful examination of the background facts as well as the
materials on record and filed along with the CMP application, this
Court found that the Defendant No.1 to the suit died on 18.02.2023.
Although thereafter an application was filed by the Plaintiff, the
same was not accompanied by an application for condonation of
delay. Hence, such application was rejected by the learned trial
Court. Thereafter, the Plaintiff's applications under Order 22 Rule 4
as well as under Order 22 Rule 9 of CPC were taken up for hearing
and by virtue of the impugned order both the applications have been
rejected. As a result of such composite impugned order dated
11.04.2025, the suit was abetted as against the legal heirs of
Defendant No.1.
10. On a careful analysis of the factual background of the present
case, further keeping in view the larger interest of justice, this Court
is of the view that the learned trial Court should have provided an
opportunity to the Plaintiff to bring an application for condonation
of delay before dismissing the applications. On a careful scrutiny
provisions contained in Section 5 of the Limitation Act, this Court
found that any appeal or any application, other than the ones filed
under Order 21 of the CPC, may be admitted after the prescribed
period if the Appellant or the applicant satisfies the Court that he has
sufficient cause for not preferring the appeal or making the
application within such period. The provision contained in Section 5
of the Limitation Act does not speak of filing of any application with
regard to pending CMP application by the party should approaches
the Court seeking condonation of delay. Moreover, the aforesaid
provision in the shape of Section 5 of the Limitation Act has been
enacted with the objective to condone the delay in an appropriate
case where the Party is found to be not at fault or has justified the
delay by sufficient reason. In the present case, during the pendency
of the suit the Defendant No.1 died. It was the responsibility of the
counsel for the Plaintiff to take steps for substitution to bring on
record of the legal heirs of the Defendant No.1. Although the steps
were taken by filing an application under Order 22 Rule 4 of CPC,
however, the same was not accompanied by an application under
Section 5 of the Limitation Act for condonation of delay. Thus, it
cannot said that the Plaintiff is solely responsible for non-filing of
the application and, as such, the Plaintiff alone should not be
penalized. Moreover, this Court is also of the view that Section 5 of
the Limitation Act does not speak of filing of an application. Instead,
on such sufficient cause being shown and the Court being satisfied
with regard to the cause of delay, can exercise the power to condone
the delay. On perusal of the impugned order it appears that the
learned trial Court has not examined the issue from that angle and
the application has been rejected only on the ground of failure of the
Plaintiff to file an application for condonation of delay.
11. On a careful consideration of the factual background of the
present case as well as the legal position, this Court is of the
considered view that although the learned trial Court has not
committed any mistake in rejecting of the application of the
Petitioner, however, the learned trial Court has failed to provide an
opportunity to the Plaintiff to file an application to explain the delay
and approaching the Court for substitution. In the aforesaid factual
background, this Court has no hesitation to set aside the impugned
order dated 11.04.2025, the same is hereby set aside. However, the
same is subject to the Plaintiff paying a cost of Rs.5,000/- (Rupees
Five Thousand).
12. Accordingly, the CMP application stands allowed.
( Aditya Kumar Mohapatra )
Judge
Sisir
Designation: PERSONAL ASSISTANCE
