Orissa High Court
Case Details
ORISSA HIGH COURT : CUTTACK C.R.P. No.20 of 2024 An application under Section 115 of the Code of Civil Procedure, 1908. *** M/s. Shivom Minerals Limited, Sundargarh … Petitioner. -VERSUS- M/s. Bajrang Metalics Limited, Sundargarh … Opposite Party. Counsel appeared for the parties: For the Petitioner : Mr. P.K. Rath, Sr. Advocate assisted by Ms. S. Das, Adv. For the Opposite Party : Mr. J.S. Chhabra, Advocate. P R E S E N T: HONOURABLE MR. JUSTICE ANANDA CHANDRA BEHERA CRP No.20 of 2024 Page 1 of 16 Date of Hearing: 18.03.2025 :: Date of Judgment : 16.04.2025 ANANDA CHANDRA BEHERA, J.— 1. This revision under Section 115 of the CPC, 1908 has been filed by the petitioner (who was the petitioner in CMA No.3 of 2018) against the Opp. Party (who was the Opp. Party in CMA No.3 of 2018) challenging an order of rejection to its CMA No.3 of 2018 passed on dated 18.07.2022 by the learned First Additional District Judge, Rourkela. 2. The factual backgrounds of this revision, which prompted the petitioner for filing of the same is that, the Opp. Party in
Legal Reasoning
this revision was the plaintiff in the suit vide C.S. No.166 of 2008 and the petitioner in this revision was the defendant in the said suit. That suit vide C.S. No.166 of 2008 of the plaintiff (Opp. Party) was decreed in part as per its Judgment and Decree dated 29.07.2016 and 12.08.2016 respectively directing the defendant (petitioner) to remove his assets as per list furnished CRP No.20 of 2024 Page 2 of 16 from the plant premises of the plaintiff at his own cost forthwith. 3. On being dissatisfied with the said Judgment and Decree dated 29.07.2016 and 12.08.2016 respectively passed by the trial court in C.S. No.166 of 2008 against the defendant, the defendant challenged the same by preferring the first appeal vide R.F.A. No.30 of 2016 against the plaintiff before the learned First Additional District Judge, Rourkela. After hearing from both the sides, although the learned 1st Appellate Court allowed that 1st Appeal vide R.F.A. No.30 of 2016 of the defendant in part as per its Judgment and Decree dated 31.08.2017 and 14.09.2017 respectively and modified the Judgment & Decree passed by the Trial Court and directed to the defendant to remove his materials, equipments, fittings, iron ores etc. stacked in the plant premises of the plaintiff within two months hence, failing which, the plaintiff is entitled to get it removed through process of Court at the cost of the defendant and also directed to the defendant to pay Rs.5,000/- per day as damages, if he (defendant) fails to remove the above materials within two months. CRP No.20 of 2024 Page 3 of 16 4. In obedience to the Judgment and Decree dated 31.08.2017 & 14.09.2017 respectively passed by the learned first appellate court in R.F.A. No.30 of 2016, the defendant as per its letter dated 07.12.2017 requested plaintiff to extend its cooperation for obtaining necessary permission as per law from the Mining Authorities for removal of the Iron Ores from the suit premises, as the plaintiff is the owner of the suit premises, to which, the plaintiff did not respond. So, the defendant as per letter dated 21.12.2017 requested the Deputy Director, Mines, Koira Circle, Koira for granting necessary permission as per law for removal of the stacked iron ores from the suit premises. After receiving said letter dated 21.12.2017, the Deputy Director, Mines Koira Circle, Koira through its letter No.7449 dated 23.12.2017 directed both the plaintiff and defendant to remain present on 27.12.2017 for joint verification of the stacked iron ores in the suit premises, but, due to non- cooperation of the plaintiff, joint verification could not be made on 27.12.2017. For which, for the same purpose, another date was fixed by the Mining Authorities to 03.01.2018, but the plaintiff also did not cooperate for such joint verification on that day i.e. on 03.01.2018. Then, the Deputy Director, Mines fixed CRP No.20 of 2024 Page 4 of 16 the date to 05.01.2018 for the same purpose, but in the same manner, the plaintiff did not cooperate for joint verification, for which, joint verification could not be done. The above letters including the letter dated 05.01.2018 of the Deputy Director, Mines, Koira Circle, Koira are going to show that, the plaintiff (Opp. Party) is not cooperating with the Mining Authorities for joint verification of the suit premises for the removal of the iron ores therefrom, as no specific direction has been given in the Judgment and Decree passed in R.F.A. No.30 of 2016 directing the plaintiff and the Mining Authorities to render their necessary lawful assistance for removal of the iron ores from the suit premises. Only due to the above non-cooperation of the plaintiff (Opp. Party), the defendant (petitioner) is not able to remove about 36,000 metric tons stacked iron ores from the suit premises of the plaintiff. 5. So, without getting any way, the defendant filed CMA No.3 of 2018 before the 1st Appellate Court under Section 114 read with Order 47, Rule 1 of the CPC, 1908 praying for insertion/inclusion/addition of some sentences in the ordering portion of the Judgment of R.F.A. No.30 of 2016 passed by the CRP No.20 of 2024 Page 5 of 16 learned First Appellate Court directing the Mining Department to grant permission to the defendant (petitioner) to remove the iron ores from the premises of the plaintiff (Opp. Party) within 2 months after the permission of the Mining Authorities. 6. To which, the Opp. Party (plaintiff) challenged by filing its written objection stating that, the CMA of the defendant is in the nature of an independent civil suit like mandatory injunction after dismissal of the RFA No.30 of 2016, which is not maintainable under law. The defendant without taking any steps for complying the directions of the 1st Appellate Court, has come with the review petition, which is required to be dismissed with exemplary cost. 7. After hearing from both the sides, the learned First Appellate Court dismissed the CMA No.3 of 2018 of the defendant (petitioner) on contest as per its final order dated 18.07.2022 assigning the reasons that, the defendant is trying for re-hearing of the appeal vide R.F.A. No.30 of 2016 through the CMA, and the defendant is not able to point out any error apparent on the face of the record or in the ordering portion of the Judgment passed in R.F.A. No.30 of 2016, for which, the CMA No.3 of 2018 filed by the defendant is not coming within CRP No.20 of 2024 Page 6 of 16 the parameters of Section 114 read with Order 47 Rule 1 of the CPC, 1908. So, there is no ground to review the Ordering portion of the Judgment passed by the first appellate court in R.F.A. No.30 of 2016. 8. On being dissatisfied with the said dismissal order passed in CMA No.3 of 2018 on dated 18.07.2022 by the learned First Appellate Court, the defendant challenged the same by filing this Revision being the petitioner against the plaintiff arraying it as Opp. Party praying for addition of some sentences in the ordering portion of the Judgment of R.F.A. No.30 of 2016, for making the said Judgment of the learned 1st Appellate Court executable/workable under law. 9.
Legal Reasoning
I have already heard from the learned counsels of both the sides. In order to assail the impugned order passed by the learned First Addl. District Judge, Rourkela, the learned counsel for the petitioner relied upon the following decision: In a case bettween Bhavan Vaja & Others Vs. Solanki Hanuji Khodaji Mansang & Another reported in (1973) 2 SCC 40. CRP No.20 of 2024 Page 7 of 16 It appears from the Judgment and Decree passed by the learned 1st Appellate Court in R.F.A. No.30 of 2016 that, about 36,000 metric tons of iron ores were stacked by the defendant in the suit premises, in respect of which, direction was given by the learned 1st Appellate Court to the defendant for its removal. 10. As per Section 4(1A) of the Mines And Minerals (Development And Regulation) Act, 1957 along with Rule 10 of the Orissa Minerals (Prevention of Theft, Smuggling & Illegal Mining and Regulation of Possession, Storage, Trading and Transportation) Rules, 2007 that, “No person shall transport or store or cause to be transported or stored any mineral otherwise than in accordance with the provisions of this Act and the Rules made thereunder.” Likewise, “any person who wishes to transport or remove any mineral from any place, shall make an application complete in all respect in Form H in duplicate to the Competent Authority for issue of a permit as per the Orissa Minerals (Prevention of Theft, Smuggling & Illegal Mining and Regulation of Possession, Storage, Trading and Transportation) Rules, 2007. 11. Though, it is forthcoming from the records in R.F.A. No.30 of 2016 that, about 36,000 metric tons of iron ores have been CRP No.20 of 2024 Page 8 of 16 stacked by the defendant inside the suit premises of the plaintiff, but no direction has been given to the plaintiff as well as Mining Authorities to render their necessary lawful assistance for issuance of permit as per law in favour of the defendant for the removal of the said huge quantity of stacked iron ores from the suit premises of the plaintiff. It was the case of the defendant in the CMA No.3 of 2018 that, the Opp. Party/plaintiff being the owner of the suit premises (in which the iron ores have been stacked) is not co- operating with the defendant for obtaining necessary permit as per law from the Mining Authorities for the removal of the stacked iron ores from its suit properties due to lack of any direction in the ordering portion of the Judgment passed by the learned 1st Appellate Court, and when, only due to the non- cooperation of the plaintiff for that purpose, the defendant/petitioner had approached the learned 1st Appellate Court by filing CMA No.3 of 2018 praying for insertion of some sentences in the ordering portion of the Judgment directing the Mining Department to grant permission to the defendant to remove the Iron Ores from the premises of the plaintiff (Opp. CRP No.20 of 2024 Page 9 of 16 Party) within 2 months after the permission of the Mining Authorities. 12. Section 21 of the Mines and Minerals (Development and Regulation) Act, 1957 provides that, “Whoever contravenes the provisions of sub- section (1) or sub-section (1A) of section 4 shall be punishable with imprisonment.” 13. The provisions of law envisaged in the Mines and Minerals (Development and Regulation) Act, 1957 & Orissa Minerals (Prevention of Theft, Smuggling & Illegal Mining and Regulation of Possession, Storage, Trading and Transportation) Rules, 2007 provide that, “any mineral can never be transported or removed without the necessary lawful permit of the Mining Authority”. 14. In view of the above provisions of law envisaged in the Mines and Minerals (Development and Regulation) Act, 1957 & Orissa Minerals (Prevention of Theft, Smuggling & Illegal Mining and Regulation of Possession, Storage, Trading and Transportation) Rules, 2007, in order to execute/comply/carry out/workout the directions made by the learned First Appellate Court in the ordering portion of the Judgment passed in R.F.A. No.30 of 2016 by the defendant, cooperation of the owner of the CRP No.20 of 2024 Page 10 of 16 suit premises, i.e. plaintiff as well as the mining authorities for issuance of necessary permit in favour of the defendant for the removal of the stacked iron ores from the suit premises of the plaintiff are very much essential. 15. When it has been stated on behalf of the defendant that, due to the absence of any direction to the plaintiff as well as Mining Authorities in the ordering portion of the Judgment passed in R.F.A. No.30 of 2016, the plaintiff (owner of the suit premises) is not co-operating with the Mining Authorities for granting necessary permission in favour of the defendant for the removal of the stacked iron ores from the suit premises, then, at this juncture, the question arises, “whether the learned First Appellate Court has any power, authority or jurisdiction under law to insert some sentences in the ordering portion of the Judgment and Decree already passed by it in R.F.A. No.30 of 2016 directing the plaintiff (Opp. Party in this revision) as well as Mining Authorities to render necessary lawful assistance for granting necessary permission for the removal of the stacked iron ores from the suit premises?” CRP No.20 of 2024 Page 11 of 16 16. It is the settled propositions of law that, a decree or a direction of a Court can be executed, only when, it is executable in nature. Unless a decree is executable in nature, the Court cannot proceed to execute that decree. For which, the Court cannot assume jurisdiction to execute the decree, which is in otherwise non-executable. Therefore, it is the responsibility of the Court to pass an executable decree. Because, a non-executable decree is beneficial to no party. 17. On this aspect the propositions of law has already been clarified by the Apex Court in the ratio of the following decisions: I. II. In a case between A.R. Antulay Vs. R.S. Nayak & Another reported in AIR 1988 (SC) 1531 that, Review—Once it is realized that, a mistake had been committed, it would not only be appropriate but also the duty of the Court to rectify the mistake by making review. (Para No.20.3) In a case between Vidya Devi Vs. The State of Himachal Pradesh and Ors. reported in 2020 (1) Civil Court Cases 718 (SC) that, in a case, where the demand is so compelling, a constitutional Court would exercise its jurisdiction with a view to promote justice, and not defeat it. justice for (Para No.10.7) CRP No.20 of 2024 Page 12 of 16 18. As per the discussions and observations made above, unless some sentences are added in the ordering portion of the Judgment passed by the learned 1st Appellate Court in R.F.A No.30 of 2016 directing the plaintiff and Mining Authorities to provide their necessary lawful assistance for the grant of permission under law in favour of the defendant for lifting the stacked iron ores from the suit premises of the plaintiff, the direction given by the learned First Appellate Court in the Ordering portion of the Judgment of R.F.A. No.30 of 2016 cannot at all be executed/carried out/worked out practically. For which, in order to make the direction given by the learned First Appellate Court in its Judgment executable/workable practically and lawfully, some sentences are required to be added in the ordering portion of the Judgment and Decree passed by the learned First Appellate Court in R.F.A. No.30 of 2016 without altering the main substratum and basic structures/intention/purpose/object of that Judgment and Decree by applying the ratio of the aforesaid decisions of the Apex Court, for no other reason, but only in order to make the directions of the learned 1st Appellate Court in its Judgment and Decree passed in R.F.A. No.30 of 2016 CRP No.20 of 2024 Page 13 of 16 executable/workable practically. Because, it is the duty of every Court in India to make every Judgment workable/executable or else the main object/purpose of deciding the suit/appeal and proceeding shall be frustrated/defeated. 19. As per the discussions and observations made above, when, it is held that, some sentences are required to be added in the ordering portion of the Judgment and Decree passed in R.F.A No.30 of 2016 by the 1st Appellate Court for making that Judgment and Decree executable/workable practically, then, at this juncture, the total rejection of the CMA No.3 of 2018 passed by the learned First Appellate Court through the impugned order cannot be sustainable under law. For which, there is justification under law for making some interference with the same through this revision filed by the petitioner (defendant). 20. Therefore, there is some merit in the revision of the petitioner. The same shall succeed in part. 21. In result, the revision filed by the petitioner is allowed in part on contest, but without cost. CRP No.20 of 2024 Page 14 of 16 22. The impugned Order dated 18.07.2022 passed in CMA No.3 of 2018 by the learned First Additional District Judge, Rourkela Court is set aside. 23. The matter i.e. CMA No.3 of 2018 is remitted back to the learned First Appellate Court i.e. to the Court of learned First Additional District Judge, Rourkela to consider the C.M.A. No.3 of 2018 afresh for insertion of some sentences as per law in the ordering portion of the Judgment and Decree passed in R.F.A. No.30 of 2016 as per the requirements under Mines and Minerals (Development and Regulation) Act, 1957 & Orissa Minerals (Prevention of Theft, Smuggling & Illegal Mining and Regulation of Possession, Storage, Trading and Transportation) Rules, 2007 for making the directions in the Judgment and Decree passed in R.F.A. No.30 of 2016 by the learned 1st Additional District Judge, Rourkela for removal of the stacked iron ores from the suit premises of the plaintiff executable/workable practically. 24. The parties to this revision are directed to appear before the learned First Additional District Judge, Rourkela on dated 25.04.2025 in C.M.A No.3 of 2018 in order to receive the directions of the learned 1st Additional District Judge, Rourkela CRP No.20 of 2024 Page 15 of 16 as to the further proceedings of C.M.A No.3 of 2018 on the basis of the observations made in this Judgment for making the Judgment and Decree passed in R.F.A. no.30 of 2016 by the learned 1st Additional District Judge, Rourkela executable/workable practically without altering/touching the main substratum/structures/intention/purpose/object of that Judgment and Decree. 25. The learned First Additional District Judge, Rourkela shall dispose of the C.M.A No.3 of 2018 within a period of 1 month positively from the date of appearance of both the parties after giving opportunity of being heard to the parties. 26. Registry is directed to communicate this Order to the learned 1st Addl. District Judge, Rourkela immediately. (ANANDA CHANDRA BEHERA) JUDGE High Court of Orissa, Cuttack The 16 .04. 2025// Rati Ranjan Nayak (RK) Sr. Stenographer Signature Not Verified Digitally Signed Signed by: RATI RANJAN NAYAK Reason: Authentication Location: High Court of Orissa, Cuttack, India. Date: 17-Apr-2025 17:21:03 CRP No.20 of 2024 Page 16 of 16