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Hema Dibya Vs. Amarendra Kishore Das and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 311 of 1964
Judge
Reported inAIR1966Ori55
ActsCode of Civil Procedure (CPC) , 1908 - Order 15, Rule 1 - Order 22, Rules 3 and 11
AppellantHema Dibya
RespondentAmarendra Kishore Das and ors.
Appellant AdvocateR.N. Panigrahi, Adv.
Respondent AdvocateV. Samantarai, Adv.
DispositionRevision dismissed
Cases ReferredM. R. Goda Sahib v. State of Madras
Excerpt:
.....of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the..........hearing the application on the date fixed, the application was heard on 21-9-64. the learned munsif passed the following order:'plaintiff puts in a petition praying for certain amendment in the plaint by substituting plaintiffs nos. 1 and 2 in place of the deceased plaintiff. copy served. heard. allowed.'on 22-9-64, the date to which the hearing had been fixed, the defendant 1, filed an objection against the petition dated 21-9-64. the learned trial court passed an order that 'as substitution has been allowed, the petition is rejected.' against this order the civil revision has been filed.2. mr. panigrahi raised two contentions (1) the substitution made in misc. appeal does not amount to substitution in the suit and that there being no substitution in the suit itself in time, the.....
Judgment:
ORDER

G.K. Misra, J.

1. T. S. No. 206/57 in the Court of Munsif, Kendrapara was dismissed for default on 19-9-60. Mic. Case No. 178/60 filed to set aside the above order of dismissal was dismissed on 26-4-61. M. A. No. 81/61 in the Court of District Judge, Cuttack was filed against the order dated 25-4-61. During the pendency of this appeal, the sole plaintiff, Nanda Kishore Das died on 13-12-62 leaving behind his widow Sitamani Dei and son Amarendra Kishore Das as legal representatives. An application for substitution was filed in lime. It was allowed and substitution was made. The Misc. appeal was ultimately allowed on 1-2-64 and the learned District Judge directed that T. S. No. 206/57 be restored to file of the Munsif, Kendrapara. On 21-4-64, the records of the lower Court reached the Munsif and he passed the following order:

'As per Order passed in Misc. Appeal No. 81 of 1961 the suit is restored to its original file. Call on 18-5-1964 for hearing.'

The case was adjourned from date to date and was fixed to 22.9.64 for hearing. Just a day before i.e. on 21-9-1964, the substituted plaintiffs filed an application that though they had already been substituted in the Misc. Appeal, there was no correction of cause title in the plaint and that in place of the deceased plaintiff the name of the Substituted plaintiff should be mentioned and the plaint be accordingly amended. A copy of this application was served on the defendant. Without hearing the application on the date fixed, the application was heard on 21-9-64. The learned Munsif passed the following order:

'Plaintiff puts in a petition praying for certain amendment in the plaint by substituting plaintiffs Nos. 1 and 2 in place of the deceased plaintiff. Copy served. Heard. Allowed.'

On 22-9-64, the date to which the hearing had been fixed, the defendant 1, filed an objection against the petition dated 21-9-64. The learned trial Court passed an order that 'as substitution has been allowed, the petition is rejected.' Against this order the Civil Revision has been filed.

2. Mr. Panigrahi raised two contentions (1) the substitution made in Misc. Appeal does not amount to substitution in the suit and that there being no substitution in the suit itself in time, the learned trial Court should have held that the suit had abated, (2) that at any rate the order dated 21-9-64 should not have been passed by the learned Munsif without giving opportunity to the defendants to file their objection and without the matter being heard in their presence.

3. The second argument has considerable force. The matter ought not to have been heard on 21-9-1964 by the learned trial court. The defendant-petitioner has filed an affidavit that she had no notice that the application would be heard on 21-9-G4 and that in fact she was not heard. The learned Munsif, Sri B.K. Patnaik who passed the order on 21-9-64, was given a copy of the revision application for furnishing an explanation. He states that both the parties were heard on that date. The order sheet D/- 22-9-64 does not support his statement. Plaintiffs have not filed a counter affidavit that in fact the defendants were heard by the learned Munsif on 21-9-64. The probabilities are against the statement made by the Munsif in his explanation. The case had not been fixed for 21-9-64. There was no justification for him to go out of his way to hear both parties on that date without giving notice. The usual order passed in such case is to put up the application on the date fixed. On the aforesaid reasons, I am inclined to accept the petitioner's case that she was not present on 21-9-64 and the order was passed in her absence. The outlook of the learned Munsif in conducting judicial proceedings in such highly irregular manner reflects no credit on him.

4. The aforesaid view docs not, however, advance the case of the petitioner. The important question that arises for consideration is whether further substitution in the suit is necessary. The contention of Mr. Panigrahi that the widow and the son should have been again substituted in the suit is not arguable. The only relief sought in the Misc. appeal was for restoration of the suit. During the pendency of the appeal, the sole plaintiff died and legal representatives were substituted. When the Misc. appeal was allowed the relief of restoration of the suit was granted in favour of the substituted plaintiffs and not in favour of the deceased plaintiff. In the very nature of the relief granted, any further substitution would not only be fantastic but would be illegal. The learned appellate Court should have passed a formal order that the suit being restored, the cause title of the plaint should be amended to bring it in accord with the substitution made in the Misc. appeal.

Reliance was placed by Mr. Panigrahi on an unreported decision of the Supreme Court referred to in M. R. Goda Sahib v. State of Madras, 1965 SC Notes, Vol. VII item 300. The blue print has not yet come. No reliance can be placed on the head note of the case when the entire decision is not before the Court. Even if the head note represents the correct facts, the decision has no application to the present case. From the cryptic facts given therein it appears that during the pendency of the appeal from a preliminary decree, a party died without substitution being made in the appeal. There was a substitution in the final decree proceeding. It was contended in the Supreme Court that the substitution in the final decree proceeding would amount to a substitution in the appeal. Their Lordships rejected this contention on the ground that though the appeal is a continuation of the suit, the converse is not correct. The position is too elementary and this decision should not have been cited.

5. Thus though the trial Court was in error in disposing of the application in the absence of the defendants without giving them opportunity of being heard no error had been committed by him in view of the substitution already made by the appellate Court in the Misc. appeal. No useful purpose will be served by remanding the case for hearing as it was fully heard in the High Court. The Court has rightly directed that the plaint should be amended by deleting the name of the deceased plaintiff and by substituting in his place the two legal representatives.

6. In the result, the Civil Revision fails and is dismissed, but in the circumstances, parties to bear their own costs. The records of the case be sent back at once. The Munsif, Kendrapara is directed to dispose of the case within three months from today, with intimation to this Court, as the suit has become already eight years old.


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