Orissa High Court
Sudam Charan Sahu vs Swarnalata Sahu And Others .... Opp. ... on 13 December, 2022
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No. 981 of 2022
Sudam Charan Sahu .... Petitioner
Mr. Bidesh Ranjan Behera, Advocate
-versus-
Swarnalata Sahu and others .... Opp. Parties
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 13.12.2022 3. 1. This matter is taken up through Hybrid mode.
2. The issue involved in this CMP is that whether a Defendant can be transposed as Plaintiff in a partition suit when the suit itself has abated due to death of the sole Plaintiff.
3. Mr. Behera, learned counsel for the Petitioner relied upon a decision in the case of S.Anjaneyulu Vs. Soorampally Venkata Rama Gupta and others, reported in 1994 (1) Current Civil Cases 482 (Andra Pradesh) in which it is held that in a partition suit upon death of the sole Plaintiff the suit abates against the Plaintiff only not against the surviving Defendant(s) and the Defendant(s) can pursue the suit on being transposed as Plaintiff(s). He also relied upon a decision of the Calcutta High Court in the case of Provat Chandra Coomar and others Vs. Rabindra Nath Coomar and others, reported in AIR 1960 Cal 291 in which it is held that the Court has the inherent power to set aside abatement of a partition suit and entertain an application filed by the Defendant under Order 1 Rule 10(2) CPC to be transposed as Plaintiff. Mr. Behera, learned counsel further submits that in the case at hand the Petitioner/Defendant Page 1 of 2 // 2 // No.2 does not have any conflicting claim with Plaintiff as stated in para-7 of the CMP. In that view of the matter, this Court feels that the matter requires consideration.
4. Hence, issue notice.
5. Mr. Behera, learned counsel submits that the Petitioner does not claim any relief against Opposite Party Nos. 10 to 26 and hence he prays for dispensing with service of notice on them for the time being.
6. Prayer is allowed.
7. Requisites for issuance of notice to Opposite Party Nos. 1 to 9 by registered post with AD shall be filed by 15th December, 2022, as undertaken.
8. Put up this matter on 1st February, 2023 along with tracking report of the Postal Department.
(K.R. Mohapatra) Judge s.s.satapathy Page 2 of 2