The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO. 141 OF 2014 In the matter of an application under Article 227 of the Constitution of India. ….. ACE Auto Cars Pvt. Ltd., Bhubaneswar, Khurda …… Petitioner Sudhir Kumar Sahoo and others -Versus- …… Opp. Parties Advocates appeared in these cases: For Petitioner : M/s. Banshidhar Baug, M.R. Baug, R.R. Jethi & P.C.P. Das
Legal Reasoning
For Opp. Parties : M/s. Bibekananda Bhuyan, B.N. Das, S.K. Panda, R. Ray, P.K. Rout, B.M. Mishra, C.R. Swain, Smt. P. Mohanty and Miss S. Sahoo (For Opp. Party No.1) M/s. D.K. Sahoo, P.K. Behera and P.K. Sahoo (For Opp. Party Nos.2 to 4) CORAM : MR. JUSTICE K.R. MOHAPATRA
Decision
------------------------------------------ Heard and disposed of on 31.07.2023 ----------------------------------------- JUDGMENT K.R. Mohapatra, J. 1. This matter is taken up through hybrid mode. 2. Order dated 11th February, 2014 (Annexure-6) passed by learned 2nd Additional Senior Civil Judge, Cuttack in C.S. No.598 of CMP NO. 141 OF 2014 Page 1 of 6 // 2 // 2008 is under challenge in this CMP, whereby an application filed by the Defendant No.4-Petitioner to frame an additional issue, has been rejected. 3. Mr. Baug, learned counsel for the Petitioner submits that T.S. No.102 of 1987 was filed by one Saroj Kumar Sahoo and others for partition. In the said suit amongst others, Issue No.9 was as under: “9. Whether Sudhir Kumar Sahoo is the adopted son of deceased Lokanath Sahoo”? 3.1 Said Sudhir Kumar Sahoo was Defendant No. 2 in T.S. No. 102 of 1987. The suit was decreed vide judgment dated 30th November, 2006 answering the Issue No.9 in the affirmative. Assailing the same, other Defendants preferred two appeals in RFA Nos.157 and 164 of 2007 before this Court. Subsequently, said first appeals were transferred and are pending in the Court of learned 2nd Additional District Judge, Cuttack. When the matter stood thus, the Defendant Nos.1 and 2 in C.S. No.598 of 2008 (out of which this CMP arises) alienated a portion of the suit property in favour of Defendant No.4 therein (present Petitioner). When the Defendant No.4-Petitioner started construction over the suit property, said Sudhir Kumar Sahoo raised objection to the same and filed C.S. No.598 of 2008 with the following prayer: “(a) Let the Defendant No.4, it’s officials or staffs, agents or any person claiming through it be restrained by a decree of perpetual injunction from coming over the Schedule ‘B’ land or any way interfering the peaceful possession of the Plaintiff over the same or change it’s nature and character of the same in any manner whatsoever; (b) Cost of the suit be decreed in favour of the Plaintiff; (c) Any other relief/reliefs to which the Plaintiff is found entitled be also granted in his favour.” CMP NO. 141 OF 2014 Page 2 of 6 // 3 // 4. The Defendant No.4-Petitioner on appearance filed his written statement. Subsequently, he filed two petitions, i.e. one is for framing of an additional issue, i.e., “Is the Plaintiff adopted son of Lokanath Sahoo, who is the husband of Defendant No.1 and father of Defendant No.2” and the second one was filed under Section 10 C.P.C. to stay further proceedings of C.S. No.598 of 2008 during pendency of RFA No.157 of 2007. Both the applications were rejected by a common order dated 11th February, 2014 (Annexure-6). 5. This CMP has been filed assailing the rejection of an application to frame an additional issue to the effect that “is the Plaintiff adopted son of Lokanath Sahoo, who is the husband of Defendant No.1 and father of Defendant No.2?” 6. The said application was rejected on the ground that the Defendant No.4 in his written statement has admitted that the issue regarding adoption has already been decided by learned trial Court in T.S. No.102 of 1987 against which the Defendant Nos.1 and 2 have preferred RFA No.157 of 2007. Thus, it is held that when the issue has already been decided by learned trial Court and the same is pending for adjudication in the learned Appellate Court, it would not be proper to again give a finding on adoption of the Plaintiff-Opposite Party No.1 by late Lokanath Sahoo in the present suit, more particularly when the suit is for injunction simplicitor. 7. It is submitted by Mr. Baug, learned counsel for the Petitioner that the Plaintiff-Opposite Party No.1 in the present suit was arrayed as Defendant No.2 in T.S. No.102 of 1987 and was described as son of Lokanath Sahoo. In the plaint filed in the present suit, the Plaintiff- Opposite Party No.1 has described himself as the son of Lokanath Sahoo without stating that he was a natural son of late Shiba Sahoo. It CMP NO. 141 OF 2014 Page 3 of 6 // 4 // is specifically stated by Defendant Nos.1 and 15 (Opposite Party Nos.1 and 2) that they had filed written statement in T.S. No.102 of 1987 stating that the Plaintiff-Opposite Party No.1 was not the son of Lokanath Sahoo, but natural son of late Shiba Sahoo. 8. Mr. Baug, learned counsel refers to Order XIV Rule 1 C.P.C. which speaks about framing of issues. Issues are two types as per sub- rule 4 of Rule 1, such as, issues of facts and issues of law. As per sub- rule (1), issues arise when a material proposition of fact or law is affirmed by one party and denied by the other. So, when a fact pleaded by the Plaintiff either in law or in fact is denied by the Defendants in their written statement, an issue has to be framed on that point. 9. In the present suit, the Plaintiff-Opposite Party No.1 lays his claim as the adopted son of late Lokanath Sahoo, which was categorically denied by the Defendants in their respective written statements. Hence, an issue is required to be framed on the question of adoption of Plaintiff-Opposite Party No.1 and the Court is obliged under law to act accordingly. He relied upon the decision in the case of A. Shanmugam –v- Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam, reported in AIR 2012 SC 2010, wherein it has been held as under: “30. Framing of issues is a very important stage of a civil trial. It is imperative for a Judge to critically examine the pleadings of the parties before framing of issues. Rule 2 of Order 10 CPC enables the court, in its search for the truth, to go to the core of the matter and narrow down, or even eliminate the controversy. Rule 2 of Order 10 reads as under: “2.Oral examination of party, or companion of party.—(1) At the first hearing of the suit, the court— (a) shall, with a view to elucidating matters in controversy in the suit, examine orally such of the parties to the suit appearing in person or present in court, as it deems fit; and CMP NO. 141 OF 2014 Page 4 of 6 // 5 // (b) may orally examine any person, able to answer any material question relating to the suit, by whom any party appearing in person or present in court or his pleader is accompanied. (2) xxx xxx xxx (3) xxx xxx xxx 31. It is a useful procedural device and must be regularly pressed into service. As per Rule 2(3) of Order X CPC, the Court may if it thinks fit, put in the course of such examination questions suggested by either party. Rule 2(3) of Order X CPC reads as under:- “2. (1) xxx xxx xxx (2) xxx xxx xxx (3) The Court may, if it thinks fit, put in the course of an examination under this rule questions suggested by either party.” 32. If issues are properly framed, the controversy in the case can be clearly focused and documents can be properly appreciated in that light. The relevant evidence can also be carefully examined. Careful framing of issues also helps in proper examination and cross- examination of the witnesses and final arguments in the case.” 10. Learned trial Court without delving into this material aspect of the matter has passed the impugned order. Hence, the impugned order under Annexure-6 is liable to be set aside. 11. Mr. Bhuyan, learned counsel for the Opposite Party No.1 submits that since the issue with regard to adoption of Plaintiff- Opposite Party No.1 has already been decided in T.S. No.102 of 1987 and is pending for adjudication in RFA No.157 of 2007, framing an issue on the question of adoption of Plaintiff-Opposite Party No.1 in the present suit will be nothing but an abuse of the process of Court and may lead to conflicting of decisions and multiplicity of litigations. As such, learned trial Court has committed no error in dismissing the petition. 12. Considering the rival contentions of the parties, this Court is of the considered opinion that when the issue with regard to adoption of Plaintiff-Opposite Party No.1 (Sudhir Kumar Sahoo) has already been CMP NO. 141 OF 2014 Page 5 of 6 // 6 // answered in T.S. No.102 of 1987 and the Defendant Nos.1 and 2 in the present suit (Defendant Nos.1 and 15 in T.S. No.102 of 1987) have already filed RFA No.157 of 2007 assailing the same, it is not at all required to frame an issue in the present suit and the same is not required to be answered in the present suit. It is more so because the suit has been filed for permanent injunction simplicitor. The burden is on the Plaintiff to prove his case to get a relief of injunction. Thus, framing an issue with regard to adoption of Plaintiff-Opposite Party No.1, namely, Sudhir Kumar Sahoo, by Lokanath Sahoo will be nothing but an abuse of the process of the Court and may lead to conflicting of decisions and multiplicity of litigations. The Court is not required to frame an issue on each of the pleadings denied by the Defendants. As held in A. Shanmugam (supra) framing of issue is a very important stage of a civil suit. It is imperative for a judge to critically examine the pleadings before framing the issues. The duty is cast on the Court to frame an issue which is relevant for adjudication of the suit. Issue of adoption is not relevant for adjudication in the present suit, which has been filed for injunction simplicitor. As such, this Court finds no infirmity in the impugned order under Annexure-6. 13. Accordingly, the CMP being devoid of any merit stands dismissed. ……………………… (K.R. Mohapatra) Judge Signature Not Verified Digitally Signed Signed by: BIJAY KUMAR SAHOO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 10-Aug-2023 19:08:30 Orissa High Court, Cuttack, Dated 31st July, 2023/bks CMP NO. 141 OF 2014 Page 6 of 6