Civil Suit No. 218 of 2020 · The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: JUNIOR STENOGRAPHER Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Jul-2024 19:34:01 IN THE HIGH COURT OF ORISSA AT CUTTACK Rajiv Jain CMP NO.648 OF 2024 …. Mr. Baibaswata Panigrahi, Advocate Petitioner -versus- Vaneeta Jain and another …. Opp. Parties CORAM: JUSTICE K.R. MOHAPATRA ORDER 23.07.2024 Order No. 01. 1. This matter is taken up through hybrid mode. 2. Orders dated 16th February, 2023, 11th May, 2023 and 2nd April, 2024 (Annnexures-4, 7 and 10 respectively) passed in Civil Suit No.218 of 2020 are under challenge in this CMP, whereby learned Senior Civil Judge, Rourkela closed the evidence of behalf
Legal Reasoning
of the Defendant-Petitioner and posted the suit for argument. In the subsequent orders, learned trial Court rejected the petitions filed under Section 151 CPC as well as under Order XII Rule 3 CPC. 3.
Legal Reasoning
It is submitted by Mr. Panigrahi, learned counsel for the Petitioner that the suit was posted to 16th February, 2023 for payment of cost of Rs.500/- to the Plaintiffs-Opposite Parties and for adducing evidence by the Defendant. Previously, the suit was adjourned on the prayer of the Defendant-Petitioner on payment of cost of Rs.500/- to the Plaintiffs-Opposite Parties. However, on 16th February, 2023, an application was filed by the Defendant- Petitioner for adjournment. But, at the time of call, no one could be present to move such application. Accordingly, the petition for adjournment was rejected and the evidence from the side of the Defendant was closed. Subsequently, the Defendant-Petitioner filed two applications; one under Section 151 CPC to recall the order dated 16th February, 2023 and another under Order XII Rule Page 1 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: JUNIOR STENOGRAPHER Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Jul-2024 19:34:01 3 CPC to admit certain documents in evidence. Both the application were rejected vide order dated 11th May, 2023 (Annexure-7). When the matter was posted to 2nd April, 2024, the Defendant-Petitioner moved another application to take into consideration the deposition of the Defendant already filed in the shape of an affidavit on 13th March, 2023, which was available on record and to exhibit the documents filed along with the same. The said application was also rejected and the suit was posted to 22nd April, 2024 for argument. 4. Mr. Panigrahi, learned counsel for the Petitioner submits that as the Defendant-Petitioner was seriously ill and could not move about, he could not instruct his counsel to pay the cost of Rs.500/- and also to make himself available for examination. However, learned counsel appearing on his behalf did not move the application for amendment for which evidence from the side of the Defendant-Petitioner was closed. Although, the application under Section 151 CPC was filed to recall the order under Annexure-4, but, learned trial Court, holding that the Defendant- Petitioner has been given an opportunity of hearing, rejected the same without considering the payer to recall the order dated 16th February, 2023 (Annexure-4). As such, the impugned orders are not sustainable and are liable to be set aside. Since the Defendant- Petitioner had already filed his evidence in affidavit on 13th March, 2023 along with documents, an application was filed on 18th May, 2023 to accept the same. The said application was also rejected on 2nd April, 2024 (Anexure-10). Hence, this CMP has been filed. 5. It is submitted that the suit is filed by the Plaintiffs- Opposite Parties for declaration of their right, title and interest and mandatory injunction directing the Defendant-Petitioner to Page 2 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: JUNIOR STENOGRAPHER Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Jul-2024 19:34:01 remove the boundary wall over the suit property. If the Defendant-Petitioner is not given an opportunity to adduce evidence in the matter, he will lose a valuable right and it will lead to multiplicity of litigation. He, therefore, submits that another opportunity should be given to the Defendant-Petitioner to adduce evidence in the matter subject to the condition to be fixed by this Court. 6. Since the suit is of the year 2020 and this Court feels that the Defendant-Petitioner should be given another opportunity to adduce evidence in the suit and in order to avoid further delay in disposal of suit which is at the stage of argument, this Court dispensing with service of notice on the Plaintiffs-Opposite Parties, proceeds with the matter. 7. Upon hearing Mr. Panigrahi, learned counsel for the Petitioners, this Court finds that the suit is filed by the Plaintiffs- Opposite Parties for declaration of their right, title, interest and possession over the suit property and also to direct the Defendant- Petitioner to demolish the boundary wall constructed over the land of the Plaintiffs. On perusal of the record, it appears that the Defendant-Petitioner was thoroughly negligent in asserting the right to contest the suit. It further appears that the Defendant- Petitioner did not comply with the direction of payment of the cost of Rs.500/- to the Plaintiffs-Opposite Parties for adjournment of the suit for which learned trial Court vide order dated 16th February, 2023 (Annexure-4) closed evidence of the Defendant- Petitioner. Subsequent applications were also rejected. It appears from the record that the cost of Rs.500/- has already been paid to the Plaintiffs, but on a subsequent day to order dated 16th February, 2023 (Annexure-4). However, it appears that the Defendant-Petitioner has already filed his evidence in affidavit. Page 3 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: JUNIOR STENOGRAPHER Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Jul-2024 19:34:01 Thus, this Court feels that another opportunity should be given to the Defendant-Petitioner to examine himself as a witness to the suit. Taking into consideration the prejudice that will be caused to the Plaintiffs, this Court feels that adequate cost should be awarded. 8. Accordingly, orders under Annexures-4, 7 and 10 are set aside subject to payment of cost of Rs.50,000/- (Rupees Fifty Thousand Only) to the Plaintiffs-Opposite Parties to be paid within ten days hence. The Defendant-Petitioner shall be allowed to be examined himself in the said suit on the date to be fixed by learned trial Court subject to payment of the cost, as aforesaid. 9. It is further made clear that the Defendant-Petitioner on the date fixed shall complete his examination-in-chief. If the cross- examination of the Defendant-Petitioner is not completed on the said date, learned trial Court may fix another date convenient for the parties for further cross-examination of the Defendant- Petitioner. After examination of the Defendant-Petitioner, if any, learned trial Court shall proceed with the argument of the suit and pronounce the judgment without further delay. 10. With the aforesaid observations and directions, this CMP is
Decision
disposed of. 11. Since this CMP is disposed of without issuing notice to the Plaintiffs-Opposite Parties, they are at liberty to seek for variation of this order, if they feel aggrieved. Issue urgent certified copy of this order on proper application. Rojalin (K.R. Mohapatra) Judge Page 4 of 4