Orissa High Court
Nimai Charan Nayak vs Gourahari Nayak on 13 October, 2017
Equivalent citations: 2018 AIR CC 352 (ORI), (2017) 180 ALLINDCAS 855 (ORI) (2017) 2 ORISSA LR 1035, (2017) 2 ORISSA LR 1035
Author: Biswanath Rath
Bench: Biswanath Rath
ORISSA HIGH COURT, CUTTACK.
C.M.P. No.1685 of 2015
An application under Article 227 of
the Constitution of India.
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Nimai Charan Nayak ... Petitioner
Versus
Gourahari Nayak ... Opposite Party
For Petitioner : M/s. S.K. Nayak-2,
C.R. Mohanty, Kintara,
S.S.K. Nayak, A. Behera,
S. Aun, G.C. Ray.
For Opp. Party : M/s. S.K. Sarangi, C.K. Mohanty,
S.K. Sarangi
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PRESENT :
THE HONOURABLE MR. JUSTICE BISWANATH RATH
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Date of hearing :13.10.2017 Date of Judgment : 13.10.2017
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Biswanath Rath, J.This civil miscellaneous petition arises out of rejection of an application under Order 22 Rule 3 of C.P.C at the instance of the legal heirs of the deceased plaintiff.
2. Assailing the impugned order, learned counsel for the petitioner submitted that unless the petitioner is added as plaintiff in place of the deceased plaintiff, there is no scope for 2 bringing the other legal heirs to the fold of the suit. Sri Nayak, thus contended that having failed to appreciate this aspect of the matter the trial Court has arrived at the wrong and erroneous impugned order. Referring to a decision of the Hon'ble Apex Court in the case of Smt. Gema Coutinho Rodrigues v. Bricio Francisco Pereira and others as reported in AIR 1994 Supreme Court 1199 learned counsel for the petitioner submitted that this decision has direct application to the case at hand. It is under the above premises, learned counsel for the petitioner submitted that the impugned order thus should be interfered with and set aside.
3. Learned counsel for the opposite party admitted that there are other legal heirs. Supporting the impugned order learned counsel for the petitioner submitted that for the existence of other legal heirs, the petitioner was duty bound to bring all of them while moving the application under Order 22 Rule 3 of C.P.C. Learned counsel for the opposite party thus contended that the impugned order is justified and requiring no interference by this Court.
4. Considering the rival contentions of the parties and taking into consideration the admitted position that the suit was filed by the mother of the petitioner challenging the validity of the sale deed at the instance of the present opposite party happens to be one of her legal heir, this Court finds, there is no dispute that the petitioner is one of the legal heir. It is under the circumstance, this Court finds, there is no illegality in moving the application under Order 22 Rule 3 of C.P.C at the instance of one of the legal heirs providing the party introducing such application to bring the further legal heirs to the fold of the suit. The application could have been allowed leaving it open to the person 3 applying for bringing the other legal heirs, which matter could have been considered subsequent to allowing the application under Order 22 Rule 3 of C.P.C. Taking into consideration the decision cited by the learned counsel for petitioner in the case of Smt. Gema Coutinho Rodrigues v. Bricio Francisco Pereira and others as reported in AIR 1994 Supreme Court 1199 this Court finds, the Hon'ble Apex Court in paragraph no.6 held as follows:
"6. It appears that the gift deeds were made by deceased brother's brother-in-law in pursuance of Power of Attorney in his favour. So long as one of the heirs has been brought on record who substantially represented estate of deceased plaintiff, the application could not be dismissed on the ground that the suit has abated or it could not proceed. Trial Court should have directed the appellant to implead other heirs, if any, of the deceased mother who was also a party to the suit by way of defendants. But the application for being brought on record by the appellant could not have been rejected. We, accordingly, set aside the order of the Trial Court dated 19-3-1979 as well as the order of the High Court dated 11-1-1983 and direct the Trial Court to bring the appellant on record as legal heir of the deceased plaintiffs and permits the appellant to implead any other heirs as co-defendants."
5. For the reasons assigned hereinabove and for the decision of the Hon'ble Apex Court, the aforesaid decision has direct application to the case at hand, this Court finds, the impugned order is not sustainable in the eye of law, consequently, while interfering with the impugned order, this Court sets aside the same and allows the application under Order 22 Rule 3 of C.P.C. This Court further directs the petitioner to file the amended plaint within two weeks hence. Further, as there is also requirement to bring the other legal heirs to record, petitioner is also directed to take appropriate step for bringing the other legal heirs by filing appropriate application within two weeks hence.
46. The civil miscellaneous petition succeeds but in the circumstances, there is no order as to cost.
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(Biswanath Rath, J.) Orissa High Court, Cuttack.
The 13th day of October, 2017/Ayas.