The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: A.R.-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 22-Apr-2024 16:30:15 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 263 of 2024 Jatindra @ Jatindranath Sahu Petitioner .... Mr. Debi Prasad Dhal, Senior Advocate being assisted by Mr. Satyajit Mohapatra, Advocate -versus- Nityananda Sahu and others …. Opp. Parties CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 19.04.2024 1. 1. This matter is taken up through hybrid mode. 2. Appearance Memo of Mr. Dhal, learned Senior Advocate for the Petitioner filed in Court is taken on record. 3. Order dated 2nd February, 2024 (Annexure-6) passed by learned Civil Judge (Junior Division), Bhadrak in CS No.272 of 2003) is under challenge in this CMP, whereby an application filed by the Petitioner to admit certified copy of the registered sale deed (RSD) No.8406 dated 28th November, 1949 as well as certain RORs in evidence has been rejected. 4. Mr. Dhal, learned Senior Advocate submits that similar nature of application filed by Defendant No.2/Petitioner earlier was rejected vide order dated 3rd August, 2023. Assailing the same, the Petitioner preferred CMP No.1051 of 2023 and this Court while disposing of the said CMP observed as under:- “5. Upon hearing Mr. Dhal, learned Senior Advocate and on perusal of the record, it appears that there is no mention about sale deed at Paragraph-14 of the written statement filed by Defendant No.2-Petitioner. It only Page 1 of 4 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: A.R.-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 22-Apr-2024 16:30:15 // 2 // reflects a mortgaged deed executed by Defendant No.2, his mother and Jogendra Sahu. There is also no material on record to co-relate the Registered Sale Deed dated 28th November, 1949 with the pleading at Paragraph-14 of the written statement, as alleged by the Defendant No.2. However, there is mention of a civil suit of 1966 in the said paragraph. As such, learned trial Court could have considered acceptance of documents filed by the Petitioner at serial No.2 of the list of documents at Annexure-3, i.e., certified copy of the decree passed in C.S. No.203 of 1966. Further keeping in mind the averments at Paragraphs-12 and 13 of the written statement to the effect that the PetitionerDefendant No.2 is the son of Jadunath Sahoo, the Petitioner intends to produce certified copy of the voter lists of Bhadrak Assembly Constituency at Serial Nos.7 and 8. There may not be any difficulty to permit the Petitioner to produce the documents at Serial Nos.7 and 8 of the list of documents at Annexure-3. 6. These aspects were not taken into consideration by learned trial Court while adjudicating the petition. Hence, keeping in mind that the suit is of the year, 2003, this Court does not feel it proper to issue notice in the matter awaiting response from the Plaintiffs-Opposite Parties. The same would further delay in disposal of the suit. 7. Accordingly, this Court sets aside the impugned order under Annexure-8 and remits the matter back to learned trial Court to adjudicate the petition afresh keeping in mind the observations made hereinabove and giving opportunity of hearing to the parties concerned. It is made clear that this Court has not expressed any opinion on the merit of the petition for production of documents as per the list at Annexure-3.” Accordingly, the Petitioner filed a fresh application for admitting the aforesaid documents in evidence vide Annexure-3. It is stated inter alia that Defendant No.2 in para-24 of the affidavit in chief has mentioned about the RSD dated 28th November, 1949. Even in cross-examination of the Plaintiff at para-53, a question was put by the Defendants in respects of the aforesaid registered sale deed. The original of the RSD was not available with Defendant No.2 Page 2 of 4 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: A.R.-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 22-Apr-2024 16:30:15 // 3 // for which it could not be exhibited. He applied for certified copy and obtaining the same, aforesaid petition was filed. 4.1 Mr. Dhal, learned Senior Advocate further submits that foundation for filing of secondary evidence has been laid by filing the petition under Annexure-3. In spite of the same, his prayer was not accepted holding that application for admitting the RSD has already been rejected earlier and Defendant No.2 has not referred to the RORs in his written statement. 4.2 It is further submitted that since foundation for adducing secondary evidence has been laid, learned trial Court should have considered the same and admitted the RSD dated 28th November, 1948 in evidence. Likewise, the RORs are public documents and there was no difficulty on the part of the Court to admit those in evidence. He, therefore, prays for setting aside the impugned order under Annexure-6. 5. Taking note of the submission of learned counsel for the Petitioner and on perusal of record, it appears that this Court while disposing of CMP No.1051 of 2023, has categorically held that there is no material available on record to corelate the RSD dated 28th November, 1949 with the pleadings in the written statement more particularly at para-14 as submitted by Mr. Dhal, learned Senior Advocate in the said CMP. When no material is available to corelate the RSD dated 28th November, 1949 with the pleadings available on record, it could not have been admitted in evidence merely because the Plaintiff and Defendant No.2 have stated about the same in their evidence. Relevancy of the said document has to be pleaded to admit the same in evidence. Page 3 of 4 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: A.R.-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 22-Apr-2024 16:30:15 // 4 // No such material is available in the written statement of Defendant No.2. Further, the RORs sought to be admitted in evidence have neither been pleaded nor their relevancy has been stated in the petition under Annexure-3. Only because those are public documents, the same cannot be admitted in evidence unless it is established that those are required for just adjudication of the suit. In view of the above, I find no infirmity in the impugned order under Annexure-6. 6. Accordingly, the CMP being devoid of any merit stands dismissed. Urgent certified copy of this order be granted on proper application. s.s.satapathy (K.R. Mohapatra) Judge Page 4 of 4