The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK SAO No.06 of 2019 Amar Bilas Mohanty …. Appellant -versus- Santosh Ku. Mohanty …. Respondent CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY
Decision
ORDER 13.02.2023 Order No 15. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Heard Mr. S. Kar on behalf of Mr. A.R. Dash, learned counsel for the Appellant and Mr. B.P. Pradhan, learned counsel appearing for the Respondent. 3. This appeal has been filed by the Appellant-Plaintiff challenging the Judgment dtd.21.01.2019 passed in RFA No. 20 of 2017 by the learned Addl. District Judge, Bhanjanagar. Vide the said Judgment learned 1st Appellate Court remanded the matter to the learned Civil Judge (Sr. Division), Bhanjanagar for retrial of the matter in T.S. No. 29 of 1998. 4. Mr. S. Kar, learned counsel appearing for the Appellant on behalf of Mr. A.R. Dash contended that the Appellant as Plaintiff filed T.S. No. 29 of 1998 before the learned Civil Judge (Senior Division), Bhanjanagar seeking partition of the suit schedule property. It is contended that vide Judgement dtd.12.09.2017 and decree dtd.26.09.2017 learned trial Court decreed the suit on contest against the present Respondent by allowing half share in // 2 // favour of the present Appellant except suit schedule F & H land under Khata No. 437, Plot No. 977. 5. It is further contended that challenging the Judgment and decree passed in T.S. No. 29 of 1998 the present Respondent who was the Defendant No. 3 in the suit preferred RFA No. 20 of 2017. The said appeal was heard and disposed of by the learned 1st Addl. District Judge, Bhanjanagar vide his Judgment dtd.21.01.2019. But it is contended that vide the impugned Judgment dtd.21.01.2019 learned 1st Appellate Court without proper appreciation of the materials available on record while setting aside the Judgment and decree passed by the learned trial Court, remanded the matter for fresh adjudication and with a further direction to dispose of the matter within a period of three (3) months from the date of receipt of the LCR. 6. Learned counsel appearing for the Appellant contended that since the suit was decreed by allowing half share in favour of the present Appellant and half share in favour of the present Respondent, there was no occasion on the part of the Respondent herein to file the appeal in question challenging the Judgment dtd.12.09.2017 and decree dtd.26.09.2017 in T.S. No. 29 of 1998. It is also contended that since during pendency of the suit, Defendant No. 4 namely Uma Charan Mohanty died issueless, no application for substitution was made and accordingly the suit was disposed of. Learned 1st Appellate Court while remanding the suit, illegally held that the legal heirs of Uma Charan Mohanty are necessary and proper Parties to the suit and in their absence the suit should not have been disposed of with allotment of share. It is accordingly contended that the order of remand passed by the learned 1st Appellate Court vide the impugned Judgment is not sustainable in the eye of law. Page 2 of 4 // 3 // 7. Mr. B.P. Pradhan, learned counsel appearing for the Respondent on the other hand contended that late Uma Charan Mohanty- Defendant No. 4 in the suit died leaving behind his legal heirs and the birth certificate of his two daughters namely Sitarani Mohanty and Gitarani Mohanty though were exhibited by the Defendant vide Ext. F & G, but the Appellant-Plaintiff never took any step to substitute the said two (2) daughters of late Uma Charan Mohanty as Parties to the suit. Instead a memo was filed indicating therein that Uma Charan Mohanty has died issueless and no subsistence is required. 7. Mr. Pradhan, learned counsel appearing for the Respondents also brought to the notice of this Court the finding of the learned trial Court while deciding issue No. 5. It is contended that though the learned trial Court while deciding issue No. 5 came across the birth certificate exhibited vide Ext. F & G, but held that those two (2) daughters in absence of sufficient evidence cannot be declared as necessary Party to the proceeding being the legal heirs of Uma Charan Mohanty. Accordingly, it is contended that since the legal heirs of late Uma Charan Mohanty-Defendant No. 4 in the suit were never substituted after his death, no illegality has been committed by the learned 1st Appellate Court in remanding the suit for fresh trial on that issue only. 8. Having heard learned counsel appearing for the Parties and after going through the materials available on record, it is found that late Uma Charan Mohanty was arrayed as Defendant No. 4 in T.S. No. 29 of 1998. Even though on the ground that late Uma Charan Mohanty has died issueless and accordingly no substitution is necessary, learned Trial Court proceeded with the suit, but it is found that the birth certificate of the two (2) daughters of late Uma Page 3 of 4 // 4 // Charan Mohanty were exhibited vide Ext. F & G before the learned Trial Court without objection. 9. In view of the same, the legal heirs of late Uma Charan Mohanty should have been impleaded as Parties to the suit. Since that was never acted upon by the Appellant-Plaintiff, this Court finds no illegality or irregularity with regard to the grounds on which learned 1st Appellate Court remanded the suit for fresh hearing by setting aside the impugned Judgment and decree passed by the learned Trial Court. Accordingly, this Court is not inclined to interfere with the impugned Judgment dtd.21.01.2019 passed in RFA No. 20 of 2017. 10. The appeal is accordingly dismissed. However, since in view of the interim order passed by this Court, the trial of the suit has not commenced after remand, this Court directs the learned trial Court to dispose of T.S. No. 29 of 1998 within a period of four (4) months from the date of receipt of this order. Sneha (Biraja Prasanna Satapathy) Judge Page 4 of 4