[Cites 5, Cited by 0]
Orissa High Court
Jitendra Narayan Dash vs Swayamsiddha Singhsamant ...... Opp. ... on 12 March, 2026
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRP No. 21 of 2025
Application under Section-115 of the Code of Civil
Procedure, 1998.
---------------
Jitendra Narayan Dash ...... Petitioner
- Versus -
Swayamsiddha Singhsamant ...... Opp. Parties
& Others
Advocate(s) appeared in this case:-
_____________________________________________________________
For Petitioner(s) : Mr. S.K. Dash, Sr. Advocate
M/s. P. Das, P. Harichandan
S. Priyadarsan, P. Mohanty
K. Banerjee &. S. Dash,
Advocates
For Opp. Parties : M/s. Biswambar Mohanty,
S.L. Pattnaik, S. K. Sethi &
K. K. Maharana,
Advocates
__________________________________________________________
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
12.03.2026
SASHIKANTA MISHRA, J. The petitioner is Defendant No.2 in
C.S.No. 6 of 2021 in the Court of learned Senior Civil Judge,
Khandapara, wherein the present Opposite Party Nos. 1 to 3
are the substituted Plaintiffs and Opposite Party No. 4 is
Defendant No.1. The present revision is directed against
order dated 09.02.2025 passed by the said Court rejecting
the application filed by the Petitioner-Defendant No.2 for
rejection of the plaint under Order VII Rule 11 of C.P.C.
2. The facts, briefly stated are that one Bibhuti
Narayan Singhsamant filed a suit for partition against the
deceased Plaintiff and Defendant No.1 registered as C.S.
No.82 of 2004 in the Court of learned Senior Civil Judge,
Nayagarh. The suit was decreed on compromise on
16.12.2014, inter alia, on the condition that if any of the
parties intended to sell his share of the property, he shall
give preference to the other co-sharers before selling it to
strangers. On 18.05.2020, Defendant No.1 sold the suit
property, which was allotted in his favour, to the Petitioner
by a registered sale deed. On 12.01.2021, Plaintiff No.1(a),
claiming to be the attorney holder of his father filed C.S. No.
6 of 2021 in the Court below, inter alia, seeking the relief of
cancellation of the sale deed dated 18.05.2020.
3. The original Plaintiff expired on 10.04.2021,
whereupon the present Opposite Party Nos.1 to 3 were
substituted in his place on 17.11.2023. The Petitioner-
Defendant No.2, filed an application on 17.07.2024 for
rejection of the plaint under Order VII Rule 11 of C.P.C. on
the ground that the same is barred by law. By order dated
09.02.2025, the Court below rejected the application.
4. Heard Mr. S.K. Dash, learned Senior Counsel
with Miss P. Mohanty, learned counsel for the Petitioner and
Mr. B. Mohanty, learned counsel for the contesting Opposite
Party Nos.1 to 3.
5. Mr. Dash would argue that the suit, as filed, was
not maintainable being filed by a Power of Attorney Holder
who was not authorized to deal with the suit property. The
Power of Attorney lost its validity upon the death of the
Plaintiff-principal. Though the Opposite Party Nos.1 to 3
were substituted, yet the relief claimed being cancellation of
the sale deed dated 18.05.2020, is also barred by limitation.
6. Mr. Dash elaborates his argument by submitting
that the contesting Opposite Parties were substituted on
17.11.2023, but the sale deed in question was executed on
18.05.2020. As per Article 59 of the Limitation Act, the
period of limitation for filing a suit to cancel an instrument
is three years. Further, as per Section-21 of the Limitation
Act, the suit shall be deemed to have been instituted from
the date of their substitution. Viewed thus, the plaint must
be held barred by limitation.
7. Per contra, Mr. B. Mohanty submits that the
original plaintiff having expired, it is no longer open to the
Petitioner Defendant No.2 to question the validity of the
Power of Attorney in question. The substituted Plaintiffs are
none other than the son, daughter and widow of the
deceased Plaintiff. Therefore, they must be deemed to have
had the knowledge of the execution of the sale deed dated
18.05.2020, on 28.11.2020, the date on which the original
Plaintiff acquired knowledge about execution of the sale
deed. Mr. Mohanty therefore submits that the impugned
order warrants no interference.
8. Though both parties have also argued with regard
to the applicability of the provisions of Order VII Rule 11 of
CPC, this Court does not deem it necessary to go into the
same in detail, as it has not been disputed that rejection of
the plaint can be sought for on the grounds enumerated
under Order VII Rule 11 (a) to 11(d) of CPC. It would be
useful to reproduce the provision:-
."11. Rejection of plaint-The plaint shall be rejected
in the following cases:-
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the
plaintiff, on being required by the Court to correct the
valuation within a time to be fixed by the Court, fails
to do so;
(c) where the relief claimed is properly valued, but the
plaint is returned upon paper insufficiently stamped,
and the plaintiff, on being required by the Court to
supply the requisite stamp-paper within a time to be
fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the
plaint to be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the
provisions of rule 9
[Provided that the time fixed by the Court for the
correction of the valuation or supplying of the requisite
stamp-paper shall not be extended unless the Court,
for reasons to be recorded, is satisfied that the
plaintiff was prevented by any cause of an
exceptional nature from correcting the valuation or
supplying the requisite stamp-paper, as the case may
be, within the time fixed by the Court and that refusal
to extend such time would cause grave injustice to the
plaintiff.]"
Considering the contentions raised Clause (d) would be
relevant to the present case.
9. The first point raised is whether the suit, as
originally filed, was maintainable or not. Admittedly, the suit
was filed by the one Swayamsiddha Singhsamant (Power of
Attorney Holder of the original Plaintiff, Mahesh Prasad
Singhsamant). Order III Rule 2 reads as follows:-
"2. Recognized agents.-The recognised agents of
parties by whom such appearances, applications and acts
may be made or done are--
(a) persons holding powers-of-attorney, authorising
them to make and do such appearances, applications and
acts on behalf of such parties;
(b) persons carrying on trade or business for and in the
names of parties not resident within the local limits of the
jurisdiction of the Court within which limits the
appearance, application or act is made or done, in matters
connected with such trade or business only, where no
other agent is expressly authorised to make and do such
appearances, applications and acts."
10. Thus, a Power of Attorney Holder is ordinarily
entitled to file a suit on behalf of his principal. A copy of the
Power of Attorney, enclosed as Anneuxre-2 to the Revision
Petition reveals that the same was executed by the principal
due to his ill health and physical problems and his inability
to attend to and look after all his properties, including those
situated at his native place, Khandapara under Sub-
Registrar/Tahasil, Khandapara, district-Nayagarh. Said
property has been specifically described in the schedule to
the Power of Attorney as follows:-
SCHEDULE
Mouza:Khandapara
Tahasil;Khandapara
Dist-Nayagarh
Plot No. Kisam Boundary Area
4322/5859 Talia-1 N:Self 0.700
S:Nala
4321 Taila-2 N. Bhima Barik 2.900
Others
S:Self
4548/5860 Taila-2 N:Forest 1.550
S. Canal
4019 Gharabari Bari 0.160
In so far as the property sought to be dealt with is
concerned, the same pertains to four plots recorded in
Khata No.1155/1072.
11. According to Mr. Dash, the schedule to the plaint,
involves a different property. The plaint schedule is quoted
below:-
SCHEDULE-A
District : Nayagarh
Tahasil : Khandapara
Thana No. : 128
Mutated Khata : 1155/1071
Plot No : 3667
Kissam : Gharabari
Area : Ac.0.100 Decimals
12. On such basis it sis strenuously urged that these
are two different properties. In other words, the property
authorized by the principal to be dealt with by his Attorney
Holder is not the same as that against which relief is
claimed to the suit. As such, the Attorney Holder was not
competent to file the suit on behalf of his Principal.
13. A close reading of the clauses of the Power of
Attorney, particularly Clause-2 reveals that the Principal
also authorized the agent to do certain other things. For
immediate reference, Clause-2 is extracted below:
"2. To demand, recover, enforce and give good and
sufficient receipts, discharges, release and
indemnities for and in respect of all property, money,
securities and rights to which I am or may be entitled
and to effect a compromise or release of any claim in
respect thereof and to pay, satisfy or compromise any
of my debts or liabilities or any claim against me."
As can be seen, the Power of Attorney also authorizes the
Agent to demand, enforce, recover.....in respect of all
property...to which the Principal is or may be entitled .... The
Suit has been filed on the basis of Clause-9 of the
compromise decree which confers on the co-sharers the
right of pre-emption. In other words, the Agent seeks to
enforce such right in respect of the share falling to the share
of defendant No. 1, which was alienated to defendant No. 2.
Now, whether such a claim is legally valid or not is a matter
to be decided in trial but in view of the language employed
in the Power of Attorney, it cannot be said at this stage that
the same did not authorize the Agent to at least lay a claim
therefor. This Court is therefore, not inclined to accept the
contention of learned senior counsel for the petitioner that
the suit is not maintainable being filed by a person not
authorized.
14. The other ground raised by the petitioner is of
limitation. It is contended that as per Section 21 of the
Limitation Act, the suit by a party added must be held to
have been instituted from the date of his addition as party.
The present plaintiffs being substituted on 17.11.2023, the
suit must therefore be held to be barred by limitation as per
Article 59 of the Limitation Act. It becomes necessary to
refer to Section 21, which is extracted below:
"21. Effect of substituting or adding new plaintiff or
defendant.--(1) Where after the institution of a suit, a
new plaintiff or defendant is substituted or added,
the suit shall, as regards him, be deemed to have
been instituted when he was so made a party:
Provided that where the court is satisfied that the
omission to include a new plaintiff or defendant was
due to a mistake made in good faith it may direct that
the suit as regards such plaintiff or defendant shall
be deemed to have been instituted on any earlier
date.
(2) Nothing in sub-section (1) shall apply to a case
where a party is added or substituted owing to
assignment or devolution of any interest during the
pendency of a suit or where a plaintiff is made a
defendant or a defendant is made a plaintiff."
Plain reading of the provision shows that the principle
expressed in sub-section (1) shall have no application in
case of substitution owing to devolution of any interest
during the pendency of a suit. The original plaintiff having
died, his legal heirs, being his son, daughter and widow,
were substituted. Moreover, the interest of the original
plaintiff in respect of the suit property devolved upon his
legal heirs upon his death. The question of limitation
therefore, does not arise at all.
15. Reading of the impugned order reveals that the
court below has not considered the matter from the above
perspective at all nor the effect of Section 21 of the
Limitation Act and instead embarked upon a discussion on
date of knowledge of the substituted plaintiffs regarding
existence of the sale deed in question vis-a-vis Article 59. In
the considered view of this Court, such discussion was
unnecessary. What is important to note is, the plaintiffs,
being the legal heirs were substituted in place of the original
plaintiff and hence, if the suit, as originally filed, was within
the period of limitation, the same shall not become barred
by limitation upon substitution. Otherwise, the very object
of Order 22 of CPC would stand frustrated.
16. For the foregoing discussion, therefore, the
application filed by defendant No. 2 for rejection of the
plaint cannot be allowed. This Court would however, hasten
to add that it has not expressed any opinion on merits of the
plaintiffs' claim as laid. As already held, the validity of the
claim of pre-emption is a matter to be decided in trial on the
basis of evidence and this order should not be construed as
upholding the same in any manner whatsoever.
17. In the result, the Civil Revision being devoid of
merit, is dismissed.
(Sashikanta Mishra)
Judge
Orissa High Court, Cuttack,
BHIGAL March,TUDU
CHANDRA 2026/ B.C. Tudu, Sr.Steno
Designation: Sr. Stenographer
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 12-Mar-2026 17:40:22
