Sofia Parvin And Others vs State of Odisha And Others

Arindam Sinha, J

Mr. Mishra, learned advocate appears on behalf of petitioners. He submits, his clients are the sisters and brothers of the deceased. Opposite party no.5 was married to the deceased but, thereafter, divorced. Said opposite party can have no claim on estate of the deceased. However, she had applied for legal heir certificate and obtained it. When his client applied for legal heir certificate, there was discovery and caused verification to be made. Legal heir certificate of opposite party no.5 stood cancelled. Said opposite party preferred appeal.

Mr. Mishra submits, his clients were respondent nos. 4 to 8 in the appeal. The appeal was dismissed for default on 16th March, 2021 in presence of, inter alia, his clients. Appellant, without notice to his clients made restoration application, which was allowed by impugned order dated 10th August, 2021. On coming to know, his clients brought it to notice of the Sub-Collector but by also impugned order dated 21st June, 2022, the Sub-Collector said, inter alia, there was no need for service of notice of the restoration petition to his clients.

The writ petition was heard on 20th December, 2022, when interim order was made. On the same day the Sub-Collector disposed of the appeal. In this way his clients have been deprived of opportunity of hearing in the misc. case. His clients have challenged the order of restoration and subsequent order dated 21st June, 2022 made in the appeal because the restoration was done behind back of his clients and justification for it was given by said order dated 21st June, 2022.

Mr. Sharma, learned advocate, Additional Government Advocate appears on behalf of State and submits, affidavit dated 24th March, 2023 has been filed by the Sub-Collector stating on oath that the appeal was disposed of without intimation of the interim order.

Mr. Behera, learned advocate appears on behalf of opposite party no.5 and submits, the appeal was itself disposed of on order dated 20th December, 2022 restoring the matter to the Tahsildar regarding cancellation of his client’s legal heir certificate. Parties be directed to appear before the Tahsildar for adjudication on the controversy. Mr. Mishra in reply draws attention to the earlier order dated 16th March, 2021 dismissing the appeal. He submits, there was clear finding of wilful default on part of opposite party no.5. Yet no opportunity was given to his clients to resist the restoration.

Text of order dated 16th March, 2021 made by the Sub-Collector, dismissing the appeal is reproduced below.

“ Neither the appellant nor her learned advocate are present on repeated calls. Learned advocate for the respondents No.4 to 8 and learned Govt. Pleader on behalf of the respondents No.1 to 3 are present. Heard the case. On perusal of the case record it is found that the appellant remained absent and did not take any step since 14/2/2020 till date. in the meantime unnecessarily 13 adjournment dates have been passed but the appellant did not turn up to pursue her case for which it is presumed that the appellant is not interested to proceed with her case. Hence, the case is dismissed for continuous and wilful default of the appellant.”

(emphasis supplied)

It is clear that the dismissal order was passed on reason of wilful default by opposite party no.5. It was made in presence of Government Pleader and petitioners. As such, law of procedure required issuance of notice on the restoration application. The Sub-Collector discharging adjudicatory function was all the more required to observe principles of natural justice in taking away the right accrued to petitioners on dismissal of the appeal, to allow them opportunity of hearing. There is no dispute there was no direction to give notice. On the contrary, the Sub-Collector, by also impugned order dated 21st June, 2022 said there was no need for service of notice of restoration. It appears, the Sub-Collector thereupon proceeded to hear the appeal itself. It so happened that on 20th December, 2022 the writ petition was taken up for hearing and before the Sub-Collector, the appeal. Court accepts that the Sub-Collector was not informed of interim order passed staying proceeding in the appeal. The appeal stood disposed of by restoration of the matter to the Tahsildar.

Petitioners’ grievance is elsewhere. There was, as aforesaid, a reason attributed for dismissal of the appeal. Inter alia, petitioners were present or represented at the time the appeal was dismissed. In the circumstances, they were entitled to notice of the restoration. Furthermore, they had a right to be heard on merit of the reason for dismissal. Instead, what has happened is, without petitioners having that opportunity they were said to have been heard on merits of the appeal itself.

By reason of subsequent events there is necessity to mould the relief. Order dated 20th December, 2022 passed by the Sub-Collector and earlier order dated 10th August, 2021 restoring the appeal are both set aside and quashed.

The parties are relegated to the position, where they will be heard on their cases for or against restoration of the appeal, in context of reason given for the dismissal in aforesaid order dated 16th March, 2021. Parties or any of them will communicate this order to the Sub-Collector for expeditious disposal of the restoration application.

The writ petition is disposed of.

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