Bhitarchhu Harekrushna Mohapatra vs Ila Ghose And Others

K.R. Mohapatra, J

This matter is taken up through hybrid mode.

Order dated 28th July, 2023 (Annexure-9) passed by learned Civil Judge (Junior Division), Puri in O.S. No.114/69 of 1987 is under challenge in this CMP, whereby a petition filed by Defendant No.3(a) to describe him as the son of late Bhitarchhu Madhusudan Mohapatra, represented through his guardian, Sri Jagannath Pujapanda, has been rejected.

Ms. Rath, learned Senior Advocate appearing for the Petitioner submits that during pendency of the suit, the Defendant No.3, namely, Bhitarchhu Madhusudan Mohapatra, died. Thus, an application was filed by the Plaintiffs for his substitution. Since the Petitioner was a minor and was eight years old at that point of time, he was to be represented by a guardian. Accordingly, the Petitioner was represented through Sri Jagannath Pujapanda, who is the natural guardian. Be it stated herein that Bhitarchhu Harekrushna Mohapatra-Petitioner is the adopted son of Bhitarchhu Madhusudan Mohapatra (deceased Defendant No.3). She, therefore, submits that since in the meantime the Petitioner has attained the age of majority, he should have been described as the son of late Bhitarchhu Madhusudan Mohapatra and his natural father, namely, Sri Jagannath Pujapanda, who was appointed as a guardian, should be discharged. A petition in that regard was also filed. Learned trial Court keeping in view the observation of this Court in its order dated 5th January, 2022 passed in W.P.(C) No.718 of 2012 directed that Bhitarchhu Harekrushna Mohapatra should be represented through natural guardian Sri Jagannath Pujapanda and rejected the petition. Hence, this CMP has been filed.

Taking note of the submission made by Ms. Rath, learned Senior Advocate appearing for the Petitioner and on perusal of the record, it appears that Bhitarchhu Harekrushna Mohapatra was substituted as a legal representative of Bhitarchhu Madhusudan Mohapatra (deceased Defendant No.3). But, by that time, Bhitarchhu Harekrushna Mohapatra was a minor. Hence, he was represented through his natural guardian, Sri Jagannath Pujapanda. Ms. Rath, learned Senior Advocate submits that Jagannath Pujapanda is none other than his natural father. It is also submitted that the Petitioner is the adopted son of deceased Defendant No.3. As such, on attaining the age of majority, he should have been identified in the name of his father, be it adoptive or natural depending upon the facts and circumstances of the case. He should not more be represented through his natural guardian as he attained the age of majority in the meantime.

In that view of the matter, this Court feels that learned trial Court should not have been swayed by the observation made by this Court in order dated 5th January, 2022 passed in W.P.(C) No.718 of 2012 and should have applied its judicial mind to consider the prayer made by the Petitioner keeping in view the facts and circumstances of the case.

Accordingly, the CMP is disposed of with an observation that if appropriate application is filed to identify the Petitioner in the name of his father (natural or adoptive), the same shall be considered in accordance with law giving opportunity of hearing to the parties concerned. After attaining the age of majority, the Petitioner should no more be represented through the natural guardian, Sri Jagannath Pujapanda.

Urgent certified copy of this order be granted on proper application.

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