Orissa High Court
Arati Barik vs Harish Chandra Barik on 9 January, 2012
HIGH COURT OF ORISSA: CUTTACK
CRP No.39 of 2009
From an order dated 06.10.2009 passed by Smt. D. Devi, Civil Judge
(Sr. Division), Kendrapara in C.S.No. 317 of 2005.
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Arati Barik
W/o- Siba Prasad Barik,
Vill : & Post- Deulatra,
P.S. Rajkanika, Dist : Kendrapara ... Petitioner
-Versus-
Harish Chandra Barik
And others. ... Opp. Parties
For Petitioner : M/s. N.C. Pati, A.K.Das,
N. Singh, M.R.Dash &
B. Das.
For Opp. Parties : M/s. N.P. Parija, D.K.Mohapatra,
S.K.Rout, A.K.Mohanty &
B.D.Panda. ( for O.P.No.1)
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P R E S E N T:
THE HONOURABLE SHRI JUSTICE B.N.MAHAPATRA
Date of Judgement:19.01.2012
B.N. Mahapatra, J.This Civil Revision petition has been filed by the petitioner (defendant no.3 in trial court) with a prayer to set aside the order dated 06.10.2009 passed by the Civil Judge (Sr. Division) Kendrapara in C.S.No. 317 of 2005 on the ground that the said order has been passed illegally.
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2. Revision petitioner's case in a nutshell is that opposite party no.1 as plaintiff filed Civil Suit No. 317 of 2005 in the court of Civil Judge (Sr. Division), Kendrapara for permanent injunction restraining the defendants from executing the registered sale deed in favour of any outsider/stranger in respect of any portion of the suit land and cutting and removing any tree and demolishing the joint residential house along with further prayer for his preferential right to purchase the share of defendants. The plaintiff and defendant no.1 are two sons of late Khatu Barik and defendant no.2 is the widow of said Khatu Barik. According to the plaintiff, the suit land is the joint family home stead and there has been no partition by metes and bounds amongst the parties. Defendant nos. 1 and 2 sold their share in the suit land to defendant no.3, who is a stranger, by two registered sale deeds dated 27.08.2005.
3. Defendant no.3's case before the trial court is that the suit is barred for non-joinder of parties and there is no cause of action. There was partition by metes and bounds amongst the parties and for legal necessity the defendants 1 and 2 have sold their share in the land to defendant no.3, and therefore, the suit is not maintainable. During pendency of the suit defendant no.2 died and plaintiff filed a petition to delete her name as she had no other legal heir and accordingly, defendant no.2 was deleted by order dated 1.9.2008. The suit was taken up for hearing and in course of evidence 3 the plaintiff was examined and in his statement he stated that his father died in the year 1993 and he had not made the three daughters (of late Khatu Barik) as parties to the suit. At that stage, defendant no.3 filed an application on 25.08.2009 to abate the suit for non- substitution of the daughters of late Khatu Barik and Urmila Barik (defendant no.2) to which the plaintiff filed objection. On 6.10.2009 the trial court rejected the said application dated 25.8.2009 of defendant no.3 on the ground that defendants did not object to the petition of the plaintiff for deleting the name of defendant no.2 and considering the said petition of the plaintiff on 1.9.2008 the court allowed the prayer for deletion of the name of defendant no.2. It is only when the case was posted for hearing, the defendant filed a petition for abatement. The further reason assigned by the trial court is that defendant no.3 could raise the issue of non-joinder of necessary party at the time of argument. Hence, the present revision petition.
4. Mr. N.C. Pati, learned counsel appearing for the Revision- petitioner submitted that the impugned order is against the law and weight of evidence on record. Non-joinder of parties and non- substitution of the legal representatives of a deceased-party are two separate aspects, which are to be dealt with under Order 1, Rule 9 and Order 22, CPC respectively. The question of non-joinder of necessary party, no doubt, can be decided as one of the issues at the 4 final stage of hearing of the suit. Where as, non-substitution of the legal heirs of the deceased-party and question of abatement can be dealt with at any time after the death of the deceased. Question of abatement is different from non-joinder of necessary parties. The deceased-defendant no.2 having three daughters, they were required to be substituted. In absence of the said three daughters, the suit has already abated. The trial court acted illegally with material irregularities in rejecting the application for abatement of the suit. Such illegal exercise of jurisdiction by the trial court amounts to unnecessary wastage of public time and harassment meted out to defendant no.3.
5. Learned counsel Mr. N.P. Parija, appearing for the opposite parties submitted that the present civil revision petition is not maintainable in view of the amendment brought into Civil Procedure Code in the year 2002. In support of his contention, he relied upon the decision of this Court in the case of Sitaram @ Mahendra Ghosh v. Sri Antaryami Mohapatra and 18 others reported in 2003(II) OLR 409. It was further submitted that even otherwise the civil revision petition is without any merit and the same is liable to be dismissed. Placing reliance upon the decision of the Hon'ble Supreme Court in Dolai Maliko (dead) represented by his legal representatives and others v. Krushna Chandra Patnaik and others reported in Vol. XXXIII (1967) CLT-1, Mr. Parija, submitted that in presence of 5 defendant no.1 the suit cannot abate. Further he submitted that since defendant no.3 purchased the interest of Defendant no.2 during her life time, the interest of defendant no.2 is with defendant no.3. Defendant No.1 being the son of Defendant no.2, there is sufficient representation of defendant no.2. In any suit the cause of action is material and in a suit for injunction only cause of action arises against the persons who try to disturb and as such the cause of the plaintiff was only against defendant No.2. So the question of making daughters of defendant No.2 after her death as parties does not arise. Thus, there cannot be any abatement. Moreover, on 01.09.2008 the petition to delete the name of defendant no.2 has been allowed. No appeal or revision has been filed challenging the said order. The said order remains enforceable until it is set aside. Therefore, the petition filed by defendant no.3 for abatement of the suit deserves no consideration and the learned trial court has rightly rejected it.
6. In view of the above rival contentions, the following questions fall for consideration by this Court;
(i) Whether the civil revision petition is maintainable?
(ii) Whether in the facts and circumstances of the case, the suit abates for non-substitution of legal heirs of Defendant No.2 in presence of Defendant No.1.
(iii) Whether Defendant No.3-revision petitioner can represent the interest of Defendant No.2?
(iv) Whether without challenging the order dated 1.9.2008 passed by the trial court directing deletion of the name of Defendant No.2 from the record, Defendant No.3 can 6 maintain her petition for abatement of the suit on the ground of non-substitution of legal heirs of Defendant No.2?
7. Before dealing with the above questions, it is necessary to state the facts which are not in dispute. During pendency of the suit filed by opp. party no. 1 (plaintiff in the trial court), defendant no.2 died. Defendant no.2 is the mother of plaintiff and defendant no.1. She had three daughters and no step was taken by the plaintiff for their substitution after her death. No objection was also filed by anybody including Defendant no.3 for non-substitution of 3 daughters of deceased-defendant no.2. The petition filed by the plaintiff for deletion of the name of defendant no.2 was allowed on 01.09.2008. No appeal or revision was filed challenging the said order of the trial court dated 01.09.2008 directing deletion of defendant no.2. It is only on 25.08.2009 when the suit was taken up for hearing and the plaintiff in his statement stated that his father died in the year 1993 and he had not arrayed the three daughters as parties to the suit, a petition was filed by defendant no.3 for abatement of the suit, which was rejected by the trial court on 6.10.2009.
8. Question no.(i) is with regard to the maintainability of the revision petition. In view of the proviso to Section 115(1),CPC, notwithstanding fulfilment of the other requirement, as prescribed u/ s. 115, a person applying for revision against a particular order must satisfy the court that had the impugned order been passed in his 7 favour, the suit or other proceeding would have stood disposed of finally. Unless that requirement is satisfied, a revision is not entertainable even if there is a jurisdictional error committed by the trial court in dealing with and disposing of that matter.
9. In Shiv Shakti Coop. Housing Society, Nagpur v. M/s Swaraj Developers and Ors., 2003 (4) SCALE 241, the Hon'ble Supreme Court held as under:
"A plain reading of Section 115 as it stands makes it clear that the stress is on the question whether the order in favour of the party applying for revision would have given finality to suit or other proceeding. If the answer is 'yes' then the revision is maintainable. But on the contrary, if the answer is 'no' then the revision is not maintainable. Therefore, if the impugned order is of interim in nature or does not finally decide the lis, the revision will not be maintainable. The legislative intent is crystal clear. Those orders, which are interim in nature, cannot be the subject matter of revision under Section 115".
(Also see Sitaram @ Mahendra Ghosh v. Sri Antaryami Mohapatra and 18 others, 2003(II) OLR 409 ).
10. In the instant case, had the impugned order been passed in favour of the revision petitioner, that would not have certainly finally disposed of the suit. At best, the suit would have abated qua a particular defendant. Therefore, the present revision is not maintainable.
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11. Even otherwise on merit the revision petition does not succeed in view of the following answers to question Nos. (ii), (iii) &
(iv).
12. As question nos. (ii) & (iii) are interlinked, they are dealt with together. Since by the time the petition dated 25.8.2009 filed by the petitioner-defendant no.3, the order dated 1.9.2008 had been passed by the trial court directing deletion of the name of defendant no.2, the question of abatement of the suit does not arise in presence of defendant no.1. Hon'ble Supreme Court in the case of Dolai Maliko (dead) represented by his legal representatives (supra), held that even where the plaintiff or the appellant has died and all his legal heirs have not been brought on record because of oversight or because of some doubt as to who are his heirs, the suit or the appeal, as the case may be, does not abate and the heirs brought on the record fully represent the estate unless there are circumstances like fraud or collusion. Admittedly, in the present case, the petitioner- defendant no.3's case is not a case of collusion or fraud.
In N.K.Mohd. Sulaiman v. N.C.Mohd. Ismail, AIR 1966 SC 792, the Hon'ble Supreme Court rejected the contention that in a suit to enforce a mortgage instituted after the death of a Muslim, if all the heirs of the deceased were not impleaded in the suit and a decree was obtained, and in execution the property was sold, the auction purchaser could have title only to the extent of the interest of the 9 heirs who were impleaded, and he could have no title to the interest of those heirs who had not been impleaded to the suit. The Court held, that those who were impleaded as party to the suit in place of the deceased defendant represented the entire estate as they had share in the property and since they had been brought on record the decree was binding on the entire estate. Therefore, for non-substitution of the legal heirs of defendant no.2, the suit does not abate in presence of defendant No.1.
13. This point can also be looked at from a different angle. Undisputedly, defendant no.3 having purchased the interest of defendant no.2, steps into shoes of defendant no.2. The Hon'ble Supreme Court in the case of Custodian of Branches of BANCO National Ultramarino v. Nalini Bai Naique, AIR 1989 SC 1589 held as under:
"Legal representative" as defined in Civil Procedure Code means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued. The definition is inclusive in character and its scope is wide, it is not confined to legal heirs only instead it stipulates a person who may or may not be heir, competent to inherit the property of the deceased but he should represent the estate of the deceased person. It includes heirs as well as persons who represent the estate even without title either as executors or administrators in possession of the estate of the deceased. All such persons would be covered by the expression "legal reprehensive". If there are 10 many heirs, those in possessions bona fide, without there being any fraud or collusion, are also entitled to represent the estate of the deceased. Under the Portugees Law of Inheritance a widow acquires "Meeira rights" according to which she gets half share in the estate left by her deceased husband. Such widow therefore represented the estate of her deceased husband. When in a suit against the husband of such Portugees widow and after the death of the husband, the name of his widow is brought on record within time, the abatement of suit would be liable to be set aside, and the suit could proceed on merits notwithstanding the fact that the remaining legal representatives of the deceased husband were brought on record at a subsequent stage. That could not render the suit defective."
14. In view of the above, the suit would not abate for non- substitution of legal heirs of defendant no.2 as Defendant no.3 herself steps into shoes of defendant no.2 by purchasing the share of defendant No.2 in the land in question.
15. The question no. (iv) is as to whether without challenging the order dated 1.9.2008 passed by the trial court directing deletion of the name of defendant no. 2 from the record, defendant no.3 can maintain her petition for abatement of the suit on the ground of non- substitution of legal heirs of defendant no.2. The trial Court in its order observed that the plaintiff in its objection pleaded that during his lifetime Khatu Barik, husband of defendant No.2, had performed the marriage of three daughters, namely, Rukumani, Rama and Subasini, who are residing in their father-in-laws' house since long. It is further urged by the learned counsel for the plaintiff-opposite party 11 no.1 that at that time no objection was raised by defendant No.3 to such petition filed by the plaintiff to delete the name of defendant No.2.
16. Law is well settled that if an authority, who has jurisdiction, passes an order which is improper or illegal, the same cannot be treated as void. It remains enforceable until it is set at naught in an appropriate proceeding by an appropriate authority [See Trilochan Singh & Anr. Vs. Commissioner of Land Records and Settlement, Orissa & Ors., 79 (1995) C.L.T. 507].
17. The Hon'ble Supreme Court in the case of State of Punjab and others vs. Gurdev Singh, Ashok Kumar, AIR 1991 SC 2219, held that the party aggrieved by the invalidity of the order has to approach the Court for relief of declaration that the order against him is inoperative and not binding upon him. He must approach the Court within the prescribed period of limitation. If the statutory time limit expires, the Court cannot give the declaration sought for.
18. In the words of Lord Diplock, "the order would be presumed to be valid unless the presumption was rebutted in competent legal proceedings by a party entitled to sue."
19. In Smith v. East Elloe Rural District Council, (1956) A.C. 736 at page 769 Lord Redcliffs observed:
"An order even if not made in good faith is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceeding are taken at 12 law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders."
20. In the present case, the order of the trial Court dated 01.09.2008 remains enforceable until it is declared to be void or nullity by a competent court/authority.
21. Considering the case from any angle, this Court does not find any infirmity or illegality in the impugned order dated 06.10.2009 passed by the learned Civil Judge (Sr. Division), Kendrapara in C.S. No.317 of 2005 warranting interference by this Court.
22. In the result, the civil revision petition is dismissed.
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B.N.Mahapatra, J.
Orissa High Court, Cuttack The 19th January, 2012/ssd.