The High Court
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Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 23-Jul-2024 12:48:04 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 724 of 2024 Durgasi Kesava Rao Petitioner Mr. S.Sudhakar Rao, Senior Advocate being assisted by Mr. Bikram Keshari Mohanty, Advocate .... Poturaju Suramma …. Opp. Party -versus- CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 22.07.2024 1. This matter is taken up through hybrid mode. 1. 2. Order dated 25th April, 2024 (Annexure-5) passed by learned District Judge, Gajapati at Paralakhemundi in Civil Revision No.1 of 2023 is under challenge in this CMP, whereby dismissing the Revision, learned District Judge confirmed the order dated 27th September, 2023 (Annexure-4) passed by learned Senior Civil Judge, Paralakhemundi in CS No.2 of 2023, rejecting an application under Order VII Rule 11 CPC. 3. Mr. Rao, learned Senior Advocate appearing for the Petitioner submits that the Plaintiff / Opposite Party by cleverly drafting the plaint has filed the suit for injunction simpliciter. In the suit, the Plaintiff essentially claims that permission granted by the Commissioner, Endowments under Section 19 of the Odisha Hindu Religious Endowments Act, 1951 (for short, ‘the OHRE Act’) to alienate the property in favour of the Plaintiff/Opposite Party is bad. She also claims that her husband was a tenant under the Deity by paying Rajbhag. The validity of Page 1 of 4 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 23-Jul-2024 12:48:04 // 2 // the sale deed executed in favour of the present Defendant /Petitioner obtaining permission under Section 19(1) of the OHRE Act is pending before this Court in W.P.(C) No.17471 of 2020. Further, the claim with regard to tenancy under the Odisha Land Reforms Act, 1960 (for short, ‘the OLR Act’) cannot be adjudicated in a suit in view of the specific provision under Section 15 (1) (d) of the OLR Act. Thus, the suit is barred under Section 67 of the said Act. Although the suit has been filed for injunction simpliciter, but incidentally the Court has to go into validity of the sale made in favour of the Defendant/Petitioner and as to whether the husband of the Opposite Party was a tenant under the Deity or not. The sale in favour the Defendant/petitioner was made since long. Thus, the suit is barred by limitation. Although the Petitioner has raised all these issues in detail in his petition under Order VII Rule 11 CPC, but neither learned trial Court nor learned District Court could appreciate the same and rejected the petition. Hence, this CMP has been filed. 3.1 In support of his submission, Mr. Rao, learned Senior Advocate relied upon the case of K. Akbar Ali Vs. K. Umar Khan and others, reported in 2021 (2) Civil Court Cases 554 (SC), wherein, at para-7, it is held as under:- “7. In any case, an application under Order VII Rule 11 of the CPC for rejection of the plaint requires a meaningful reading of the plaint as a whole. As held by this Court in ITC v. Debts Recovery Appellate Tribunal reported in AIR 1998 SC 634, clever drafting creating illusions of cause of action are not permitted in law and a clear right to sue should be shown in the plaint. Similarly the Court must see that the bar in law of the suit is not camouflaged by devious and clever Page 2 of 4 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 23-Jul-2024 12:48:04 // 3 // drafting of the plaint. Moreover, the provisions of Order VII Rue 11 are not exhaustive and the Court has the inherent power to see that frivolous or vexatious litigations are not allowed to consume the time of the Court.” He, therefore, submits that the Court entertaining an application under Order VII Rule 11 (d) CPC has to see whether by clever drafting an illusion of cause of action is made or not. The Court must also see that the bar in law to file the suit is not camouflaged by devious and clever drafting of the plaint. Moreover, the provisions of Order VII Rule 11 CPC are not exhaustive and the Court has the inherent power to see that frivolous or vexatious litigations are not allowed to consume the time of the Court. These vital aspects were not looked into by either of the Courts while adjudicating the matter. Hence, the impugned orders under Annexures-4 and 5 are liable to be set aside. 4. Heard Mr. Rao, learned Senior Advocate for the Petitioner. Perused the materials on record and the case law placed before this Court. The plaint at Annexure-1 discloses that the suit was filed for injunction simpliciter. Although it is claimed that the husband of the Opposite Party had acquired right over the suit property being a tenant under the Deity in question by paying Rajbhag, but the same is not the subject matter of adjudication in the suit. The validity of the sale deed in favour of the Defendant/Petitioner is also not in question in the suit though pleadings to that effect is made in the plaint. Plaintiff/Opposite Party has to establish her own case by adducing cogent evidence in the matter. Even a trespasser being Page 3 of 4 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 23-Jul-2024 12:48:04 // 4 // in possession of a piece of land can maintain a suit for injunction. In the instant case, the Plaintiff/Opposite party claims the relief of injunction on the basis of her possession allegedly as a tenant under the Deity. As discussed earlier, the burden of proof is on her to prove the same. Section 73 of the OHRE Act, as contended by Mr. Rao, learned Senior Advocate, is also not a bar to maintain the present suit. The relief of injunction sought for in this suit cannot granted under the provisions of the OLR Act. The allegations made in the plaint are matters of consideration by receiving evidence form the parties by learned trial Court. 5. The relief claimed in the suit cannot be granted either by the Court/forum constituted under the OHRE Act or the OLR Act and the suit is not barred under any law. So far as the question of limitation is concerned, it can only be said that the sale in favour of the Defendant/Petitioner is not in question in the suit. Thus, the suit for inunction simpliciter cannot be held to be not maintainable. As such, I find no infirmity in the impugned orders under Annexures-4 and 5. 6. Accordingly, the CMP stands dismissed being devoid of any merit. (K.R. Mohapatra) Judge s.s.satapathy Page 4 of 4