The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 1047 of 2025 (An application under Articles 226 and 227 of the Constitution of India) Sarat Kumar Singh …. Petitioner -Versus- Gobinda Chandra Nayak …. Opposite Party Advocates appeared: For Petitioner : Mr. Bibhuti Bhusan Mishra-2, Advocate For Opposite Party : CORAM: THE HON’BLE MISS JUSTICE SAVITRI RATHO J U D G M E N T 14.08.2025 Savitri Ratho, J.
Legal Reasoning
The plaintiff-petitioner has filed the CMP challenging the order dated 16.04.2025 passed by the learned Civil Judge (Senior Division), LR & LTV, Bhubaneswar in CS No.1086 of 2019 accepting the memo filed by the defendant and rejecting his application dated 02.03.2024 filed under Section 151 read with Section 114 of the Code of Civil Procedure (for brevity, ‘the C.P.C.’) as not pressed. Page 1 of 8 CASE OF THE PLAINTIFF 2. The plaintiff-petitioner has stated in the plaint that after preparation of a forged gift-deed, the defendant has managed to record his name in the RoR of the suit property, behind the back of the plaintiff, by deleting his name, in Mutation Case No.10883/2017, vide Mutation RoR under Khata No.2074/211. Resultantly, the RoR published in the name of the Plaintiff, as aforesaid, has been illegally corrected. The Plaintiff had complained before the concerned Sub- Registrar, to take necessary legal action in respect of the forged subject gift-deed against the defendant, who had manipulated the same. He had also filed F.I.R. before the I.I.C. Badagada, Police Station on 19/26.2.2018 but he was unable to know about the legal action taken by the Police and concerned Sub-Registrar on his complaints. He had filed I.C.C. Case No. 86/2019 in the Court of the learned S.D.J.M. Bhubaneswar on 11.01.2019 and the learned Magistrate had called for a report from the I.I.C. Badagada, Police Station, vide order dated 28.01.2019. The I.I.C. Badagada, Police Station submitted report that on the complaint of the Sub-Registrar, Badagada P.S. Case No. 70/2018 dated 24.03.2018 has been registered under Sections 419/420/467/468/471 of the IPC against the defendant-opposite party and the case is under investigation and CMP No.1047 of 2025 Page 2 of 8 the Hon'ble High Court in ABLAPL No. 5854 of 2018 has directed the I.O. to release the accused on bail, vide order dated 25.03.2019 passed in the aforesaid I.C.C. Case. The learned Magistrate by order dated 04.06.2019 passed in I.C.C. No. 86/ 2019, inter alia directed to tag the case record of the I.C.C. with the CT Case No. 1310 / 2018, arising out of Badagada P.S. Case No. 70/2018. In view of the aforesaid fraud, forgery and misrepresentation committed by the defendant and his regular attempt to sell the suit property to strangers and inordinate delay on the part of the Police, to seize the forged gift-deed and to send the same for forensic test, the plaintiff- petitioner had filed this suit for appropriate relief(s) along with a separate I.A. under Order 39 Rules 1 & 2 read with Section 151 of the C.P.C. for interim relief. WRITTEN STATEMENT OF DEFENDANT 3. Written statement was filed stating that the suit is inane, nugatory, vexatious, frivolous and not maintainable. The plaintiff had suppressed the truth. He had executed the gift deed voluntarily in favour of the defendant and delivered possession of the suit land. But being influenced by the enemies of the defendant had made false allegation. The plaintiff had purchased the Court fee, engaged a scribe for preparation of the gift deed and this had been registered. CMP No.1047 of 2025 Page 3 of 8 After mutation of the land in his favour, the defendant was paying rent over the case land and had valid right, title, interest and possession over it. False allegations had been made by the plaintiff. ORDERS PASSED BY THE LEARNED TRIAL COURT 4. On 22.01.2024, the application dated 20.09.2023 filed under Order 11 Rule 14 of the C.P.C. by the plaintiff-petitioner seeking for production of the original registered gift-deed which was relied upon by the defendant in his written statement after hearing the learned counsel. The learned Court below had directed the defendant to produce the original gift-deed in the Court upon oath failing which legal adverse consequence would be drawn up against him. The case had been adjourned to 02.03.2024 for production of the original gift-deed vide document No.11131704479 dated 28.06.2017. 5. Thereafter application has been filed by the defendant under section 151 of the C.P.C. read with Section 114 C.P.C. for recall of the order dated 22.02.2024. The prayer of the petition (Annexure-8) is extracted below. “Therefore, it is prayed that the Hon'ble court may graciously be pleased to review or recall the order dated 22.01.2024 passed in Civil Suit No.1086 CMP No.1047 of 2025 Page 4 of 8 of 2019 and call for the L.C.R. bearing 1CC Case No. 86 of 2019 along with C.T. Case No.1310 of 2018 pending before S.D.J.M, Bhubaneswar and after hearing the from both sides afresh and taking evidence from both sides pass necessary order in interest of justice. And for this act of your kindness, the petitioner as in duty bound shall ever pray.” 6. An objection had been filed by the plaintiff-petitioner (Annexure-9) stating, inter alia, that he had been impersonated in the impugned registered gift-deed. Therefore, the original was required for undergoing forensic test to expose the fraud and forgery committed by the defendant to grab the suit property of the plaintiff. 7. On 16.04.2025 when the said application of the defendant was posted for hearing, a memo was filed on his behalf without serving copy on the learned counsel for the plaintiff stating that the original gift-deed was not in his custody and he cannot produce the same before the Court and that he does not want to press the petition filed under Section 151 of the C.P.C. dated 02.03.2024. The memo was accepted and the petition dated 02.03.2024 filed under Section 151 of C.P.C. filed by the defendant to recall the order dated 22.01.2024 was rejected as not pressed. The Court observed that by the earlier order the defendant had been directed to produce the CMP No.1047 of 2025 Page 5 of 8 original gift-deed but he had not submitted the same stating that the above was not in his custody and he cannot produce the same before the Court. He further directed that the case shall proceed as per law and directed the plaintiff to file the list of witnesses, documents relied upon by them and for filing of evidence by way of an affidavit by 13.05.2025. SUBMISSION 8.
Legal Reasoning
Mr. Bibhuti Bhusan Mishra, learned counsel for the plaintiff-petitioner submits that the memo had not been served on the plaintiff before it was accepted. The petitioner is prejudiced as by earlier order dated 22.01.2024, the learned trial Court had directed for production of the original registered gift deed and on failure to do so, legal adverse consequences would be drawn up against him. But on 16.04.2025, the learned Court allowed withdrawal of the petition filed by the defendant without making any observation against him. He submitted that the learned court below recorded the submissions of the defendant while accepting the memo not pressing the petition filed under Section 151 of the C.P.C. for recall of the order dated 02.03.2024. By virtue of the memo, the said order has been diluted for which the plaintiff is prejudiced. CMP No.1047 of 2025 Page 6 of 8 DISCUSSION 9. Perused the impugned order dated 16.04.2025. By the said order, it appears that the memo of the defendant not to press the petition under Section 151 C.P.C. has been accepted and the petition under Section 151 of the C.P.C. dated 02.03.2024 filed by the defendant to recall order dated 22.01.2024 has been rejected as not pressed. There is nothing in the order that the earlier order dated 22.01.2024 has been modified or diluted in any manner. By virtue of a memo, a judicial order passed earlier cannot be modified or recalled. By accepting the memo, the application filed by the defendant under Section 151 of the C.P.C. has been rejected as not pressed. The only further order that has been passed is that the plaintiff has been directed to produce the evidence. CONCLUSION 10. After hearing learned counsel for the petitioner and careful perusal of the order dated 22.01.2024 and order dated 16.04.2025, I am satisfied that as order dated 22.01.2024 has not been recalled or modified, no prejudice is caused to the plaintiff-petitioner by the impugned order dated 16.04.2025 passed by the learned Civil Judge (Senior Division), LR & LTV, Bhubaneswar in CS No.1086 of 2019 CMP No.1047 of 2025 Page 7 of 8 as the earlier order dated 22.01.2024 still stands. The order dated 16.04.2025 does not, therefore, call for any interference. 11.
Decision
With this above observation, the CMP is disposed of. (Savitri Ratho) Judge RKS Signature Not Verified Digitally Signed Signed by: RANJAN KUMAR SETHI Reason: Authentication Location: ORISSA HIGH COURT Date: 17-Sep-2025 21:20:07 CMP No.1047 of 2025 Page 8 of 8