The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO.1357 OF 2015 Laxmi Narayan Khuntia Petitioner Mr. Pradipta Kumar Mohanty, Senior Advocate being assisted by Mr. P.K. Nayak, Advocate …. -versus- Shree Jagannath Mahaprabhu and others …. Opp. Parties Mr. Debendra Kumar Mohanty, Additional Standing Counsel CORAM: JUSTICE K.R. MOHAPATRA Order No. ORDER 08.09.2023 11. 1. This matter is taken up through hybrid mode. 2. Order dated 17th August, 2015 (Annexure-6) passed by learned Civil Judge (Junior Division), Puri in T.S. No.224 of 1992/C.S. No.86 of 2003 is under challenge in this writ petition,
Legal Reasoning
whereby an application filed by the Petitioners (legal heirs of Plaintiff No.1) to transpose the legal heirs of deceased Plaintiff No.2 as Defendants, has been rejected. 3.
Legal Reasoning
Mr. Mohanty, learned Senior Advocate submits that T.S. No.224 of 1992 has been filed for declaration of title of the suit property and to confirm their possession over the same. It is further prayed to declare the ROR prepared in respect of the suit property as illegal and void. A prayer for permanent injunction has also been sought for. During pendency of the suit, the Plaintiff No.1, namely, Laxmi Narayan Khuntia died and his Page 1 of 6 // 2 // legal heirs were substituted as Plaintiff Nos. 1(a) and 1(b) who are the Petitioners in this writ petition. 3.1 Subsequently, Ramanarayan Khuntia-Plaintiff No.2 died and his legal heirs were substituted as Plaintiff Nos. 2(a) and 2(b). As the legal heirs of the Plaintiff No.2 did not cooperate with the legal heirs of Plaintiff No.1 (Petitioners herein) for early disposal of the suit, they filed an application for transposition of legal heirs of deceased Plaintiff No.2 as Defendants along with the petition for substitution of said Ramanarayan Khuntia. Although the substitution of deceased Ramanarayan Khuntia was allowed vide order dated 10th August, 2004, prayer for transposition of legal heirs of said Ramanarayan Khuntia as Defendants was dismissed on the ground that the Plaintiff Nos.1(a) and 1(b)- Petitioners did not file the sale deed by which deceased Plaintiff No.2 sold a portion of the suit property in favour of the sons of Madhusudan Khuntia [Defendant No.2(a) and 2(b)]. 3.2 Subsequently, the Petitioners also filed another application dated 24th April, 2005 under Order I Rule 10 CPC to transpose the legal heirs of deceased Ramanarayan Khuntia – Plaintiff No.2 as Defendants. When the said application was pending, another application under Order VI Rule 17 CPC read with Order 1 Rule 10(2) CPC was filed with the self-same prayer. Both the applications were taken into consideration on 17th August, 2015. At the outset, the Petitioners did not press the petition dated 25th April, 2005 and pursued the subsequent application filed under Order I Rule 10(2) CPC read with Order VI Rule 17 CPC. The said application was rejected vide the impugned order. Hence, this writ petition has been filed. Page 2 of 6 // 3 // 4. It is his submitted by Mr. Mohanty, learned Senior Advocate that the deceased Plaintiff No.2-Ramanarayan Khuntia did not cooperate with the Plaintiff No.1 for early disposal of the suit. Adding to it, he sold a portion of the suit property as per the Schedule-E of the plaint to the sons of Madhusudan Khuntia, namely, Defendant Nos. 2(a) and 2(b). The said document could not be filed when the matter was taken up for consideration on 10th August, 2004. As such, while allowing the substitution of deceased Plaintiff No.2, transposition of his legal heirs is disallowed. After obtaining the certified copy of the sale deed, i.e., RSD No.4235 dated 1st October, 2001 (Annexure-5), the present application was filed for transposition of the legal heirs of deceased Plaintiff No.2 as Defendants. Learned trial Court dismissed the application on two grounds viz; firstly the application was hit by principles of res-judicata and secondly, the sale deed in question does not include Schedule-E property. It is observed that Schedule-E property relates to Hal Khata No.626, of Mouza Dolamandap Sahi, whereas under the sale deed in question, Hal Khata No.620 of said Dolamandap Sahi was alienated. It is his submission that the description of Hal Khata number may be incorrectly stated in the sale deed but the corresponding Sabik Plot number Khata number, i.e., Sabik Khata No.42 and Plot No.471 tally in the sale deed as well as Schedule-E of the plaint. Learned trial Court did not take care to consider the same and dismissed the application. As such, the prayer for transposition of legal heirs of deceased Plaintiff No.2 requires fresh consideration. 5. It is his submission that in the meantime, the marfatdar of Opposite Party No.1 has died. Notice on the contesting Page 3 of 6 // 4 // Opposite Parties has returned unserved, as they refused to accept the same. Thus, it should be treated to be sufficient. It is his submission that no substitution of Opposite Party No.1 is necessary, as no relief is claimed against Opposite Party No.1 in the present writ petition. He further submits that the Petitioners do not claim any relief against any of the Opposite Parties except Opposite Party No.2 (i) and 2(v) upon whom notice has been returned on their refusal. 6. None appears for the contesting Opposite Parties although they are represented through their learned counsel. 7. Mr. Mohanty, learned Additional Standing Counsel for Opposite Party No.3 is present. It is his submission that as it is an inter-se dispute between the legal heirs of Plaintiff No.2 and the legal heirs of Plaintiff No.1, he has nothing to submit in this matter. This Court may adjudicate the matter in accordance with law. 8. Considering the submission made by Mr. Mohanty, leaned Senior Advocate and on perusal of record, it appears that the petition filed under Order 1 Rule 10(2) read with Order VI Rule 17 CPC was rejected on the ground that earlier similar such application was rejected earlier and the sale deed basing upon which the legal heirs of Plaintiff No.1 sought for transposition of legal heirs of Plaintiff No.2, does not relate to schedule-E property. 9. The principles of res judicata would not be applicable in the instant case as the earlier application for transposition of legal heirs of deceased–Plaintiff No.2 was dismissed on the ground that the sale deed in question was not produced. The Petitioners after obtaining the certified copy of the said sale Page 4 of 6 // 5 // deed, filed subsequent application. Thus, in view of the change in circumstances, the petition under Order 1 Rule 10(2) CPC read with Order VI Rule 17 CPC is maintainable. 10.
Decision
Perusal of copy of the plaint annexed to the writ petition as Annexure-1, it appears that the allegation is with regard to sale of Schedule-E property by the deceased Plaintiff No.2 to sons of deceased Defendant No.2 (sons of Madhusudan Khuntia) [Defendant No.2(a) and 2(b)]. Schedule-E property is described as under: “Schedule-“E” (Plaintiffs own building particulars) District-Puri, S.R.-Puri, P.S.- Puri Town, Mouza- Dolamandap Sahi, Khata No.12(Twelve), Plot No.471 (four hundred seventy one). Plot No. 472 (four hundred seventy to Hal two), corresponding Mouja- Dolamandap Sahi, Unit No.-17 (seventeen), Khata No.626 (Six hundred Twenty six), Plot No.80 (Eighty), Plot No.81 (Eighty one), Plot No.82, (Eighty Two), Plot No.79 (Seventy nine), and Plot No.78 (Seventy eight), total area 0.035 (Thirty five) decs.” Copy of the sale deed in question is also annexed to the writ petition as Anexure-5, which discloses that property in Hal Khata No.620 was sold by said sale deed. It further reveals from Annexure-5 that said Khata No.620 corresponds to Sabik Khata No.12, Plot No.471 of Dolamandap Sahi. Hal Plot No.626 relates to Sabik Plot No.471, as is evident from Schedule-E of the plaint. The aforesaid description of the Schedule-E property was not taken into consideration by learned trial Court while rejecting the prayer for transposition of legal heirs of Plaintiff No.2. Page 5 of 6 // 6 // 11. It further appears that the legal heirs of Plaintiff No.2 did not file any written objection to the prayer for their transposition as Defendants. Since a vital aspect was not taken into consideration by learned trial Court while adjudicating the petition under Order I Rule 10(2) read with Order VI Rule 17 CPC, this Court feels that the same requires fresh consideration. 12. Accordingly, the impugned order is set aside and the matter is remitted to learned trial Court for fresh consideration of petition under Order I Rule 10(2) read with Order VI Rule 17 CPC for transposition of legal heirs of Plaintiff No.2 as Defendants giving opportunity of hearing to the parties concerned. 13. Since the suit is of the year 1992, no liberal/unnecessary adjournment should be granted in the suit and learned trial Court shall make all endeavour for early disposal of the said application and proceed with the suit. 14. The CMP is accordingly disposed of. Urgent certified copy of this order be granted on proper application. Rojalin (K.R. Mohapatra) Judge Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 11-Sep-2023 16:18:22 Page 6 of 6