The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 17-Dec-2024 12:24:05 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 3653 OF 2012 Naba Kumar Maity and others …. Petitioners Mr. Soumya Mishra, Advocate -versus- Tulasi Maity and others ….
Legal Reasoning
Opp. Parties Mr. Suvendu Kar, Advocate on behalf of Mr. Ajodhya Ranjan Dash, Advocate (For Opp. Party No.1) None (For Opp. Party Nos.2 to 8) CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 13.12.2024 7. 1. This matter is taken up through hybrid mode. 2. The Petitioners in this writ petition seek to assail the order dated 7th September, 2011 (Annexure-4) passed by learned Civil Judge (Senior Division), Rairangpur in T.S. No.163 of 1998, whereby an application filed by the Petitioners-Defendant Nos.13 to 15 for stay of the suit till disposal of RSA No.229 of 2004 pending before this Court, has been rejected. 3. Mr. Mishra, learned counsel for the Petitioners submits that T.S. No.36 of 1989 was filed by one, Dolagobinda Maity- Defendant No.12 to declare him as the son of late Kishori Maity. The suit was decreed in his favour. Assailing the same, Defendant Nos.13 to 15-Petitioners filed TA No.06/04 of 1998- 1996, which was dismissed by learned Additional District Judge, Rairangpur. Assailing the said judgment and decree, the Page 1 of 4 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 17-Dec-2024 12:24:05 Petitioners have preferred RSA No.229 of 2004, which is pending before this Court for adjudication. In the meantime, Tulasi Maity-Opposite Party No.1 filed T.S. No.163 of 1998 for declaration that the judgment and decree passed in T.S. No.36 of 1989 was obtained by fraud, to declare Hemanta @ Hemanta Chandra Maity as the son of Kishori and Dolagobinda is not the son of Kishori. The Petitioners have been impleaded as Defendant Nos.13 to 15 in the said suit, i.e., T.S. No.163 of 1998. During pendency of the suit, the Petitioners filed an application under Section 10 CPC to stay further proceeding of the suit till disposal of RSA No.229 of 2004 pending before this Court. The said application was rejected vide order under Annexure-4 holding that the cause of action for filing the present suit arose only after the judgment passed in T.S. No.36 of 1989. It is also observed that the moot question to be decided as to whether the judgment and decree passed in the earlier suit, i.e., T.S. No.36 of 1989 is a nullity being obtained by practicing fraud. Thus, learned trial Court came to a finding that the final decision in the appeal (RSA No.229 of 2004) would not operate as the res-judicata in the present suit. 4. Mr. Mishra, learned counsel for the Petitioners submits that the second appeal has been admitted vide order dated 15th July, 2008 on two substantial questions of law. One of such question is “Whether the circumstantial evidence in not finding the name of Kishore Mohan subsequent to 1925 indicating the death as suggested by the defendants be not overwhelming them the self serving document No.9 and the service register of the Plaintiff?” The said ground, if adjudicated in favour of the Page 2 of 4 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 17-Dec-2024 12:24:05 Petitioners, will certainly operate as res-judicata in adjudicating the suit, i.e. T.S. No.163 of 1998. It is his submission that Kishori had died prior to 1925. Thus, Dolagobinda could not have been declared as the son of late Kishore, who was born in 1929. These material aspects were lost sight of by learned trial Court while adjudicating the petition. When the issue of fraud is pending for adjudication before this Court in RSA No.229 of 2004, the suit should have been stayed till disposal of the RSA. 5. Mr. Kar, learned counsel being authorized by Mr. Dash, learned counsel for the Plaintiff-Opposite Party No.1 submits that the Plaintiff had not filed any objection to the petition for stay. Thus, the Opposite Party No.1 cannot have any say with regard to legality of the impugned order under Annexure-4. 6. Contesting Opposite Party Nos.2 to 8 (legal heirs of Defendant No.12, namely, Dolagobinda Maity) though represented through learned counsel, do not appear at the time of hearing of the writ petition. 7. Considering the submissions made by learned counsel for the parties, this Court is of the considered opinion that learned trial Court has rightly held that by the time T.S. No.163 of 1998 was filed, earlier suit, i.e., T.S. No.36 of 1989 had already been dispose of. The subsequent suit, i.e., T.S. No.163 of 1998 has been filed with a prayer that the decree passed in T.S. No.36 of 1989 has been obtained by fraud. The second appeal, i.e., RSA No.229 of 2004 arises out of T.S. No.36 of 1989. Question of practicing fraud in obtaining the decree in T.S. No.36 of 1989 is certainly not the substantial question of law in RSA No.229 of 2004. It might be incidentally gone into while adjudicating the Page 3 of 4 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 17-Dec-2024 12:24:05 substantial questions of law as referred to above by Mr. Mishra, learned counsel for the Petitioners. That will not operate as res- judicata in deciding T.S. No.163 of 1998, as rightly observed by learned trial Court as the question of fraud has to be specifically pleaded stating the act of fraud played, which is a mixed question of fact and law. In that view of the matter, I find no infirmity in the impugned order under Annexure-4. 8. An application under Section 151 CPC was filed to recall the order under Annexure-4, which was dismissed vide order dated 30th January, 2012 under Annexure-6. Since this Court has already held that the impugned order under Annexure-4 is legal and justified, the order under Annexure-6 does not require any interference also. 9. Accordingly, the writ petition being devoid of any merit stands dismissed. 10. Since the suit is of the year, 1998, learned trial Court shall do well to dispose of the suit expeditiously, if it is still pending. 11. Interim order dated 5th March, 2012 passed in Misc. Case No.3067 of 2012 stands vacated. 12. The case record in RSA No.229 of 2004 shall be sent back to the concerned Section immediately to list the matter before the assigned Bench. Urgent certified copy of this order be granted on proper application. ms (K.R. Mohapatra) Judge Page 4 of 4