The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO. 330 OF 2022 Mirarani Fullonton and others Petitioners Mr. Debendra Kumar Sahoo, Advocate …. -versus- Pradeepta Fullonton and others …. Opp. Parties Mr. Samir Kumar Mishra, Senior Advocate being assisted by Ms. P.S. Mohanty, Advocate CORAM: JUSTICE K.R. MOHAPATRA Order No. 3.
Decision
ORDER 03.04.2024 1. This matter is taken up through hybrid mode. Order dated 25th November, 2021 (Annexure-11) passed 2. by learned 1st Additional Senior Civil Judge, Balasore in T.S. No. 89 of 2001 is under challenge in this CMP, whereby an application filed by Defendant Nos.7 to 10-Petitioners to recall the order dated 10th December, 2019 has been rejected. 3. Mr. Sahoo, learned counsel for the Petitioners submits that after closure of the evidence of the parties, the Plaintiff- Opposite Party No.1 filed an application under Order XXVI Rule 9 C.P.C., which was allowed vide order dated 21st March, 2016. The Survey Knowing Commissioner submitted its report on 12th October, 2019 after three years. At the relevant time, the Defendant No.9, who was looking after the case on behalf of the Petitioners, was not present at Balasore and could not contact his Advocate to file objection to the report of the Survey Knowing Commissioner. After adjourning the matter on few occasion, learned trial Court accepted the report of Survey Knowing Commissioner vide order dated 10th December, 2019. The Page 1 of 5 // 2 // Defendant No.9 came to Balasore on 19th February, 2020 and contacted his Advocate on 20th February, 2020 morning. Learned counsel appearing for the Petitioners informed that the report of the Commissioner has already been accepted on 10th December, 2019. It is his submission that after acceptance of the report of the Commissioner, the Plaintiff-Opposite Party No.1 filed an application under Order VI Rule 17 C.P.C. with a prayer to amend the plaint claiming more share in the suit, i.e. MS Plot No.580/1136. The report of the Commissioner was a faulty one as survey was conducted without following due procedure of law. Hence, the Petitioners filed an application to recall the order dated 10th December, 2019 by which the report of the Commissioner was accepted and sought for permission to file objection to the report of the Commissioner. Said application was rejected vide order dated 25th November, 2021 (Annexure- 11). Assailing the same, the present CMP has been filed. 4. This Court finding a prima facie case issued notice in the matter. While admitting the matter, this Court keeping in mind the prejudice that may be caused to the Plaintiff-Opposite Party No.1 in the event the CMP is allowed, directed the Petitioners to deposit a sum of Rs.10,000/- , which has been complied with. The Plaintiff-Opposite Party No.1 will not be prejudiced, if the Petitioners file an objection to the report of the Commissioner and the same is considered in accordance with law. Due to unavoidable circumstances, objection to the report of the Commissioner could not be filed earlier and the report of the Commissioner was accepted vide order dated 10th December, 2019. Thus, the impugned order under Annexure-11 should be Page 2 of 5 // 3 // set aside and the Petitioners may be directed to file objection to the report of the Commissioner by recalling the order dated 10th December, 2019. 5. In course of hearing, Mr. Sahoo, learned counsel for the Petitioners drew attention of this Court to the documents under Annexure-6 series with regard to treatment of the wife of Defendant No.9, who was looking after the case on behalf of the Petitioners. 6. Mr. Mishra, learned Senior Advocate appearing for the Plaintiff-Opposite Party No.1 vehemently objects to the same and submits that the Petitioners were given ample opportunities to file objection to the report of the Commissioner. Since the Petitioners did not file any objection to the report of the Commissioner, the same was accepted on 10th December, 2019. The report of the Commissioner is a piece of evidence and will be considered along with other materials at the time of argument of the suit. Thus, the Petitioners will not be prejudiced, if the report of the Commissioner is accepted and considered at the time of argument of the suit. It is further submitted that the suit is of the year, 2001 and evidence of the parties has already been closed. It is, however, submitted that he has no instruction whether the Plaintiff-Opposite Party No.1 had filed any application under Order VI Rule 17 C.P.C. or not. But, that has got no bearing on the impugned order itself. Hence, he prays for dismissal of the CMP. 7. Taking note of the submissions made by learned counsel for the parties and on perusal of the case record, it appears that the report of the Commissioner was submitted on 12th October, Page 3 of 5 // 4 // 2019 and it was accepted on 10th December, 2019. Material available on record discloses that the Petitioners were given ample opportunities to file objection to the report of the Commissioner. It is submitted by Mr. Sahoo, learned counsel for the Petitioners that the Defendant No.9, who was looking after the case on behalf of the Defendant Nos.7 to 10-Petitioners, could not contact his Advocate to file objection as his wife was ill and was being treated at Cuttack. She was suffering from cancer. Documents under Annexure-6 series relating to treatment of the wife of Defendant No.9 do not suggest that the wife of Defendant No.9 was being treated at Cuttack during the relevant period, i.e. during the period when the report of the Commissioner was submitted on 12th October, 2019 till it was accepted vide order dated 10th December, 2019. Documents showing treatment of the wife of Defendant No.9 relate to a period much before filing of the report of the Commissioner. There is no material on record to show that the Defendant No.9 was at Cuttack during the relevant period for treatment of his wife for which he could not allegedly file objection to the report of the Commissioner. Thus, this Court is of the considered opinion that learned trial Court has committed no error in rejecting the petition for recalling the order dated 10th December, 2019, whereby the report of the Commissioner was accepted. This Court does not hesitate to hold that the report of the Commissioner is a piece of evidence and will be considered along with the materials available on record at the time of argument of the suit. Thus, the Petitioners are at liberty to argue on the veracity of the report of the Commissioner at the time of Page 4 of 5 // 5 // argument of the suit on the basis of the materials available on record. 8. Accordingly, the CMP is disposed of without interfering with the impugned order under Anenxure-11. 9. Deposit of Rs.10,000/- made by the Petitioners along with interest accrued thereon shall be returned to the Petitioners on proper identification and acknowledgement. 10. The interim order dated 2nd May, 2022 passed in I.A. No.389 of 2022 stands vacated. Urgent certified copy of this order be granted on proper application. bks (K.R. Mohapatra) Judge Signature Not Verified Digitally Signed Signed by: BIJAY KUMAR SAHOO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 05-Apr-2024 18:48:12 Page 5 of 5