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Judgment
K.R. Mohapatra, J
This matter is taken up through hybrid mode.
Order dated 4th May, 2023 (Annexure-2) passed by learned Additional Senior Civil Judge, Sambalpur in C.S. No.23 of 2020 is under challenge in this CMP, whereby an application filed by the Plaintiff-Petitioner with a prayer to issue fresh notice to the L.Rs of deceased Defendant No.1 for their appearance and for filing written statement, has been rejected.
Ms. Naidu, learned counsel for the Petitioner submits that during pendency of the suit for partition, Defendant No.1 died and his legal heirs were substituted. Before issuance of notice to the LRs of deceased Defendant No.1, they appeared and filed their written statement. However, to regularize the matter, the aforesaid application was filed. Learned trial Court dismissed the said application holding that as the LRs have already been impleaded as Defendant Nos.1(a) to 1(d) and filed their written statement, question of issuance of fresh notice to them does not arise.
It is her submission that although Defendant Nos.1(a) to 1(d) have already appeared suo motu and filed their written statement in order to regularize the matter and to avoid further complications, learned trial Court should have allowed the petition filed by the Plaintiff-Petitioner to issue notice to the LRs of deceased Defendant No.1. In support of her submission, Ms. Naidu, learned counsel for the Petitioner also relies upon the cases of Chandabai Sharma –v- Addl. District Magistrate, Baragarh and others, reported in 2013 (I) OLR 788 and Indu Bhushan –v- Munna Lal and another, reported in AIR 2007 SC 1114.
Mr. Bhuyan, learned counsel appearing for the caveator submits that once the parties have already entered appearance and filed their written statement, learned trial Court has committed no error in dismissing the petition filed by the Plaintiff-Petitioner with a prayer to issue fresh notice to the LRs of deceased Defendant No.1.
Taking into consideration the submissions made by learned counsel for the parties and on perusal of the impugned order under Annexure-2, it appears that after death of Defendant No.1, his LRs have already been substituted as Defendant No.1(1) to 1(d). Before issuance of notice to the LRs of deceased Defendant No.1, they entered appearance and filed their written statement.
In view of the above, issuance of fresh notice to the LRs will be an abuse of process of Court. As such, learned trial Court has committed no error in dismissing the petition filed by the Plaintiff-Petitioner, as stated above.
Accordingly, the CMP being devoid of any merit stands dismissed.
Urgent certified copy of this order be granted on proper application.
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